MESSAGE FROM THE QUEEN

Electoral Commission

Jim Fitzpatrick: I have to inform the House that the Address of 10 January praying that Her Majesty will reappoint as electoral commissioners Pamela Joan Gordon, for the period of two years, and Sir Neil William David McIntosh KBE, for the period of three years, was presented to Her Majesty, who was graciously pleased to comply with the request.

Oral Answers to Questions

WORK AND PENSIONS

The Secretary of State was asked—

Financial Assistance Scheme

Adam Price: What his current estimate is of the levels of assistance that will be provided by the financial assistance scheme.

Alan Johnson: I refer the hon. Gentleman to the written statement on the financial assistance scheme made on 22 February by the Minister for Pensions.

Adam Price: No one should doubt the Secretary of State's sincerity on this issue. Does he accept, however, that although the intention of last week's statement was no doubt to provide peace of mind, it has created another level of uncertainty? In order to dispel that, will he tell us at what level the cap will be set? When will we know for certain which companies are eligible, and how much money will be left at the end of the day for the 50,000 people who are beyond three years from retirement?

Alan Johnson: First, we envisage that the cap will be the same as that in the Pension Protection Fund—£12,000. That is our intention. Secondly, I understand that there is uncertainty for other people, but because we will not know absolutely what the assets and obligations are until all the schemes involved have been wound up, we had to make a choice. The temptation was to say nothing until the arrival of that happy state, which is some months away, but following representations by both Government and Opposition Members it was absolutely right to give some comfort to people who were three years away from their scheme age retirement. I am unable to say anything more until we have the final details of the schemes involved.

Anne Begg: Following last week's news, the workers of the Richards pension scheme in Aberdeen were delighted to find that they were to be included in help from the financial assistance scheme. Notwithstanding what the Secretary of State said in answer to the previous question, can he can give us any idea of time scales? When might all pensioners in such schemes have an idea of what they are going to get and when they are likely to get it?

Alan Johnson: Our intention is to lay the regulations in the spring, to be in a position to have Royal Assent by around July, and then to give a six-month period for people to apply. The list of almost 400 schemes that we published last week is indicative, not definitive, and some schemes may not be on it. We hope that when the application process is completed and we have full details of all those schemes, which is impossible until those particular pension funds have been wound up, we will be in a position—it should be around the beginning of next year—in which to be absolutely sure about what we can offer and to have the scheme fully in place.

David Willetts: Will the Secretary of State confirm a simple point of arithmetic? If the scheme's entire £20 million annual budget were spent on the 15,000 people whom we understand he wants to help, would they get £1,300 a year each—which is not much—and how much would be left over to help the other 50,000 or so victims of pension wind-ups?

Alan Johnson: I had better immediately correct an error that I apparently just made. I said that the cap under the financial assistance scheme would be the same as for the Pension Protection Fund. I apologise, Mr. Speaker, for misleading the House. The cap under the PPF is higher; the cap under this fund will be £12,000.
	We have a sum set aside that we think, on the basis of our original calculations, will be enough to give proper compensation to people who are in this situation; that is what we want to do. On 22 February, we announced that the scheme review will now include the finances of the scheme. That process will begin with the next spending review and starts next year. We also said, because this is an issue of great importance to all those affected, that we would not force them to buy annuities, and that we would run the scheme from the DWP, which means that we take the risk rather than the individuals involved. I accept that the full details will have to be laid out at some stage, but I hope that people appreciate that no one has ever tried such an exercise previously. We are taking private sector schemes from 1 January 1997, piecing together all the information on their assets and the gap between their assets and their obligations, and trying to provide help from the centre—from Government. That is a difficult and complex process, which means that we will not be in a final position to give the sort of details that hon. Members obviously want until some time in the future.

David Willetts: But last week the Secretary of State called for consensus on pensions whenever possible. Can we at least get a consensus that £20 million divided by 15,000 people equals £1,300 per year? I would have thought that all hon. Members could agree about that. Does he accept that many victims of pension wind-ups are working that out and asking, "If we're not in the first 15,000, what is there for us?"? Talking about a review is not good enough. Does not he accept that, if a review is all he can offer, he will leave 50,000 victims of pension wind-ups facing desperate uncertainty? Would not it be far better instead to offer to use banks' unclaimed assets, as the right hon. Member for Birkenhead (Mr. Field) originally proposed, to help those people?

Alan Johnson: I do not accept that. Conservative Members failed to vote for a Second Reading for the Bill that provided the basis for the legislation. If I understand the argument of the hon. Gentleman and his colleagues correctly, they would have stripped away the FAS from the measure and introduced another Bill. That means that we would be starting the process of getting the necessary legislation only now, with the result that people would have had to wait far longer.
	Some of the schemes go back to the days when the Conservative party was in power. It never contemplated offering compensation to people in the position that we are considering. [Hon. Members: "Never had to."] Conservative Members claim that they never had to. The number of redundancies associated with the problem is the lowest on record. It was at its highest under the previous Government. There were plenty of people in that position under the previous Government. We have acted to rectify that, whereas they did nothing.

Kevin Brennan: I congratulate my right hon. Friend the Secretary of State on acting first in the interests of those in the most immediate need, as many of us called on him and his predecessor to do in the many debates on the subject. The hon. Member for East Carmarthen and Dinefwr (Adam Price) described the announcement as a betrayal in the press. Does my right hon. Friend agree that that is nonsense? Is not it the case that opening the door to the possibility of more funding for the FAS means that people can at least see some light at the end of the tunnel?

Alan Johnson: I agree, and I again pay tribute to my hon. Friend for his role in the campaign following the problems at Allied Steel and Wire. If the announcement is a betrayal, I think that working people need a few more such betrayals, given the assistance it provides to people, some of whom I met last week, who believed that they would never get anything. Some of those people are now in their early 70s.
	Few people expected us to be able to provide a scheme, and when we did Opposition Members spread cynicism throughout the country and said that it would provide nothing substantial. Now that it has, their next trick is to spread more cynicism and say that people will get no assistance. We are determined to help people in the position that we are discussing. We are probably the first Government even to attempt such an exercise, and I am proud of that. It is far from being a betrayal.

Steve Webb: The financial assistance scheme offers 80 per cent., whereas the Pension Protection Fund gives 90 per cent. The Secretary of State has admitted that the cap will be half the level of that for the PPF. There is a third aspect to the problem. Will he confirm that, once the pensions are in payment, they will be frozen until the recipient dies? If so, they will fall in real value year after year. Does he think that that is adequate?

Alan Johnson: The hon. Gentleman is cynicism personified. Yes, the cap has been set at a lower level than that for the Pension Protection Fund, but it is a level at which we estimate that 95 per cent. of people will qualify. It is right that resources should be focused where they are most needed, and that taxpayers do not end up funding pensions paid to executives of failed companies that might have led to the company failing in the first place. Of course the PPF is in a different position: it is an insurance scheme that we are setting up for the future. People cannot insure their house once it has burned down, and we have always made it absolutely clear that the FAS will not be as generous as the PPF. We said that from the start. We also said from the start that we were looking to provide some assistance in an area in which the Government do not have a responsibility to provide compensation. So we are providing assistance in these circumstances. The hon. Gentleman's point is that the PPF scheme guarantees more than the FAS does, but everyone has known that from the start—it is hardly news to anyone involved. It is about time he gave us some praise for seeking to resolve this issue in a way that gives people some meaningful compensation.
	I was asked about the issue of freezing last week. Not all the schemes involved were index-linked. To index-link the financial assistance scheme would take resources away rather than concentrating them in the area that we think best for giving people maximum compensation. We shall not index-link the FAS, because many of the schemes involved were not index-linked in the first place.

Derek Wyatt: My constituents at ASW in Sheerness are thrilled with this announcement. Kent people who had asbestos-related illnesses in Chatham had to wait 18 years for compensation, as did people with lung disease who had worked in the mines in Kent, yet we have done this in two and a half years. Given that the Secretary of State has now opened the door to the £400 million, will the amount being put in be reviewed every three years, or will he consider putting in £100 million a year over 20 years so that everyone knows that there will be adequate funding for the pensioners?

Alan Johnson: I congratulate my hon. Friend on his involvement in this issue. He makes a very good point about the compensation offered to miners. He might also have mentioned the compensation provided to trawlermen by this Government. Those issues were all thought to have been lost a long time ago. I also reminded the House last week about the extra money that we put into the Aberfan fund after people had sought to get it from the Conservative Government for 18 years. When I raised that issue last week, Conservative Front Benchers said, "But Aberfan happened under a Labour Government." I suppose that that was their reason for not allowing the money to go into the fund during the 18 years in which they were in power.
	On my hon. Friend's question about the triennial review process, we plan to look at the amount available in the next spending review, at which time we shall have full details of all the schemes. That should prevent us from having to have further reviews every three years.

Incapacity Benefit

David Borrow: What steps he is taking to encourage people claiming incapacity benefit back into employment.

Stephen McCabe: What steps he is taking to encourage people claiming incapacity benefit back into employment.

Alan Johnson: We are committed to ensuring that significantly greater numbers of people on incapacity benefits are helped into the labour market. Pathways to work is the most significant initiative designed to meet this objective. We have recently set out our plans for fundamental reform of incapacity benefits in our five-year strategy. We want to create a new framework of support for people who can return to work, while offering greater security to those who probably cannot.

David Borrow: Although my constituency has full employment, hundreds of people who are still on incapacity benefit there would like to get back to work. Will my right hon. Friend join me in congratulating the staff of the Leyland Jobcentre Plus office, who have helped more than 90 people back into work since April last year? Will he also look at ways of helping them to provide even more support to help more people back into work in my constituency?

Alan Johnson: I join my hon. Friend in congratulating the staff at the Leyland office. It is a tremendous achievement to get 90 people off incapacity benefit and back into work in an area that is not part of our pathways to work project, given that pathways areas have double the success rate of non-pathways areas in putting people into jobs. Without the expertise, dedication and almost evangelical approach of front-line personal advisers, we would not achieve such results, so I pay due tribute to the staff involved and to my hon. Friend for taking such an interest in these issues in his constituency.

Stephen McCabe: While I welcome the aims of my right hon. Friend's policy, I also seek two assurances from him. First, will he do all that he can to ensure that bureaucrats do not reinterpret those aims, as seems to have been the experience of my visually impaired constituent, Steven Buckley? He is doing everything he can to get to work, but the access to work people seem to prefer him to give up his job. Secondly, will my right hon. Friend give me a categorical assurance that there will be no attempt to limit the period for which people can claim incapacity benefit?

Alan Johnson: I invite my hon. Friend to write to me about the specific incident that he mentioned. Obviously I am not denying that problems arise in the system, but I think that in general we get the balance just about right between those who need assistance and those who will probably not be able to work again.
	I can reassure my hon. Friend that we will not introduce time-limiting of incapacity benefit. That is not part of our five-year plan, and not part of anything that the Government propose.

Paul Holmes: Will the Secretary of State confirm that, according to his plans, by 2008 new incapacity benefit claimants will receive a lower holding benefit but will be able to increase it to a higher rehabilitation support allowance if they successfully complete a work-focused interview and establish an action plan for seeking work? Is it not the case, however, that in two thirds of the country they will not benefit from the assistance of the pathways to work scheme, which provides more support?

Alan Johnson: The hon. Gentleman is wrong on two counts. The holding benefit will be the same as the current benefit, which is about £54 a week, the same as jobseeker's allowance. Whereas the current benefit applies for 26 weeks, however, we plan to achieve completion of the personal capability assessment in 12 weeks. We are already achieving that in pathways to work areas. The process will become much quicker.
	As for the move to other benefits, the idea is to ensure that pathways to work is in place throughout the country. That underpins the whole plan, and we will not introduce the new procedures until it has happened. The point is important, and I am glad that the hon. Gentleman raised it. What we have said is that by 2008, when a third of the country will be covered by the pathways to work scheme, we intend to have in place legislation enabling us to change to the new system—which must be primary legislation—as well as training for GPs, occupational health provision overseen by the Health and Safety Executive, and linking rules so that people who take the huge step of giving up incapacity benefit know that they can return to the same position. All those proposals are crucial to making this a success. After 2008, we will roll out the rest of the pathways to work scheme and implement our proposals fully.

Paul Goodman: We have published proposals to build on the Government's new deal for disabled people, expanding the role of the voluntary sector. Our proposals would reduce the number of existing claimants by 400,000 over the course of a Parliament. Would what the Government recently announced reduce the number by more than that, or less?

Alan Johnson: I find it difficult to take those proposals seriously. Today I wrote to the hon. Member for Havant (Mr. Willetts) to try to clarify the position. It appears that the Conservatives are saying that they will take 65,000 staff out of Jobcentre Plus, close 600 offices, and give those on the new deal a better deal while ensuring that less money is available to provide that better service. I am afraid that the hon. Gentleman's figures do not add up.
	Conservative Members do not seem to realise that a third of the Jobcentre Plus programmes are already in the private sector. Their figures do not take that into account. We expect to return far more people on incapacity benefit to work than would be possible under a half-baked proposal to close offices and cut schemes but improve services at the same time. We know the Conservative party's record, and we expect it to be replicated in the unfortunate event of their return to office.

Dari Taylor: Last week I had the pleasure of visiting my local Jobcentre Plus office and Stockton Blind People's Voice. I was there when Blind People's Voice introduced to all in Stockton its "into work" project. Its members were very pleased about much that Ministers are saying, but they wanted me to ask a question. Does not going into work require an enormous leap of confidence for blind and other disabled people? They ask for that to be acknowledged, so that they can work and receive benefit, but can work for as many hours as they can manage rather than a statutory number of hours. If they can work for four hours, that should be accommodated until they can manage 16 or more. I should greatly appreciate a response to that question.

Alan Johnson: I remind my hon. Friend—I accept her interest in these matters—that we have changed the permitted work rules precisely because of some of those issues. We need to see whether we need to do anything further. People with the most severe disability want to reconnect with the world of work. They were previously thought to be incapable of doing anything but sit at home. She is absolutely right. We need to use their skills and talents. That is what the Disability Discrimination Bill is all about. That is what the changes in the permitted earnings rules are all about. We need to go even further perhaps to make it easier for those people to take what is, as she says, a very difficult step.

Julie Kirkbride: The Secretary of State is right to say that more people in the United Kingdom should be economically active both for their financial benefit and to have something to do with themselves during the day. In answer to a previous question, he recognised that for many people it will be quite frightening to go back to work. There will be great anxiety as to whether they can go back to what they previously did, which is more comfortable, if it does not work out. Can he set out in more detail at what point people who find that their attempt to go into the labour market does not work will be able to go back to their more comfortable life, as they will see it, on incapacity benefit?

Alan Johnson: The hon. Lady raises one of the crucial issues. Now in the pathways to work experiments, we are reaching out not to people who have been on IB for 12 months, who were part of the initial pathways to work, but to people who have been on IB for longer—for up to two years. Ten per cent. of people participating have been on IB for much longer and are volunteers. The crucial aspect is the £40 a week in-work credit to allow them to get over that problem. Because of the linking rules that my right hon. Friend the Chancellor announced in the Budget, they will have the opportunity to go back to where they were if it all comes to grief, rather than going through the whole IB process again. That only needs to apply for a certain amount of time—

Jane Kennedy: Two years.

Alan Johnson: Up to two years, as my right hon. Friend reminds me. If someone has managed to get past those barriers and to be in work for two years, we can safely say that they are back in the world of work and on the road away from that terrible existence on the princely sum of £74 a week, sitting at home disconnected from society. I hope that the hon. Lady accepts that we are seeking to tackle what she is right to say is a real and relevant problem.

Child Support

Mark Hendrick: If he will make a statement on the operation and performance of the new scheme of child support arrangements since March 2003.

Angela Watkinson: What his latest estimate is of when he will approve the transfer of all old cases to the new system at the Child Support Agency.

Nick Palmer: If he will make a statement on progress in the transition to the new Child Support Agency system.

Alan Johnson: Under the new scheme, just under a quarter of a million applications had been cleared by September 2004 and over 33,000 first child maintenance premium payments had been made.
	As I said to the Select Committee on Work and Pensions, this area is at the top of my agenda. We have been working hard with Electronic Data Systems to overcome the computer difficulties. I intend to report back to Parliament following the next software release. We know that much more work still needs to be done and I am keen that we should explore a variety of improvement solutions.

Mark Hendrick: My right hon. Friend will be well aware that the arrangements for child maintenance payments from March 2003 were meant to get payments flowing quickly and regularly. Two years on, like many of my colleagues, no doubt, I still regularly find cases of incorrect levels of assessment, delays in adjusting assessments and payments, and a system that seems to penalise those willing to pay, rather than those unwilling to pay, causing much distress to many. How quickly will that situation change?

Alan Johnson: My hon. Friend can ask me how quickly the situation will change. I am afraid that I cannot give—

Nigel Waterson: He does not have a clue.

Alan Johnson: I think that that is a better description of the Conservative party when it was in power. When it comes to failures in the Child Support Agency and to computer failures, it built up a certain amount of expertise in its 18 years in power.
	As I said in my initial answer, the first stage is to get the computer system right. I will report to Parliament. Indeed, the Work and Pensions Committee, whose Chairman, the hon. the Member for Roxburgh and Berwickshire (Sir Archy Kirkwood), is present, has asked for a report to Parliament in the spring. It is right that I report to Parliament when the final software upgrade has taken place, because we will then know whether we have got the computer system right. If it is right and up and running properly, we can plan accordingly and transfer the old cases across to it. I hope to be in a better position to provide a precise time scale when I report to Parliament in the spring.

Angela Watkinson: The Secretary of State will know that many absent fathers trapped on the old system are paying so much of their income in CSA payments that they barely have enough left to live on, and certainly not enough to take advantage of their access rights. The best advice that the CSA can offer them is that they give up their jobs and go on to benefits. Clearly, that is to nobody's advantage—not the men themselves, nor the children nor the community at large. This situation cannot go on. Something has to be done about it urgently.

Alan Johnson: I would be surprised if anyone from the CSA advised such a person to go on to benefits. I know that the hon. Lady recently wrote to me about a case involving the CSA, too, and I should point out that if any such advice has been given, it is wrong and should be countered. In terms of the difficulties experienced with the CSA, no one should be exempt from criticism—neither me nor anyone in this House—except the CSA staff, who have tried hard to cope in very difficult circumstances. They should be applauded, but if there are occasions when the wrong advice has been given, I want to know about them so that we can deal with the situation immediately.

Nick Palmer: Does the Secretary of State not agree that even if the new software works as we hope it will and the transfer of old cases begins, the process has taken substantially longer than we hoped? Moreover, does he also agree that the transition disregard of only £10 a week each year—the intention behind it was to allow recipients more time to anticipate the change—is perhaps no longer appropriate? We have been anticipating such a change for year after year, so it will come as no surprise to anyone. Once we get the new system up and running, should we not implement the changes a little faster?

Alan Johnson: We should implement the changes as fast as possible. The £10 disregard is an important part of the new system—it is not intended as some form of compensation and nor is it dependent on the new system's being introduced more quickly. In fact, it is a very important component and it was agreed to in all parts of the House when the relevant legislation was passed. We are very keen to ensure that as many people as possible can take advantage of the £10 disregard, and to remind people that under the old system a £1,000 payment is available for single parents who take up work. That is an important element of the original CSA scheme.

George Young: Where the CSA has agreed that substantial arrears are payable to the parent with care, why cannot a manual payment be made, rather than waiting for the computer programme to be fixed?

Alan Johnson: Provision is made for manual payments. Indeed, our staff are working on four different systems: the old scheme on the old IT, the new scheme on the old IT, the new scheme on the new IT, and clerical cases. The purpose of that last approach is to deal with such problems where there is no alternative to a manual method. If the right hon. Gentleman would like to write to me about the particular case he has in mind, I will look into it.

Frank Field: Given EDS's track record of failing to deliver on its promises, what fall-back position do the Government have if EDS fails yet again?

Alan Johnson: As my right hon. Friend knows, we have withheld payments in respect of EDS until the system is right. In fact, to be fair to EDS, our Pension Service system, which it also runs, has been working very well. However, we want to ensure that the scheme is operating properly for the people whom we care about most—the children involved—and we will ensure that until that is so, the money will not be released to EDS. Indeed, we will withhold a substantial amount.

Tim Boswell: As the Secretary of State has already made it clear that he has been working closely with EDS, he will recall that it said last October that by the end of the year it would have given the agency the tools to do the job. Is it not now increasingly clear that the main problem is not just computers that do not work, but a management culture that is dysfunctional and an outcome that is based on discrimination between old cases and new cases, which is increasingly unacceptable? The chief executive has been given his cards, but he is apparently still working, so would it not be appropriate if Ministers, who appear to lack any political will or sense of urgency about this matter, were given their cards promptly, too?

Alan Johnson: I shall respond to a little of that. The hon. Gentleman knows that Her Majesty's official Opposition take the rather pathetic course of packing a Back-Bench Select Committee with their own Front Benchers—something that I always find rather distasteful and unnecessary—so Conservative Members know that we have been round the track on all of this. The hon. Gentleman is right about EDS having said last year that the computer software would be installed by the end of the year. It will not, but we hope that it will be in place by the next phase in the spring.
	The system is working sufficiently well to make a decision on termination difficult, but not well enough to deliver the standards that our customers expect—that is the problem. It does not mean that we have removed the so-called nuclear option of changing the provider. That will be kept in play until we are absolutely sure that the new system will work. Changing providers can cause problems; it could mean making children who need the money wait even longer, so we must take that into account as well.

Incapacity Benefit

Andrew Selous: If he will make a statement on his policy on the number of new claimants who will be entitled to receive the new higher rate of benefit following incapacity benefit reform.

Maria Eagle: We expect the clear majority of new claimants to be on the rehabilitation and support allowance, as most people come on to an incapacity benefit with potentially manageable conditions. Disability and sickness allowance will focus on those with the most severe impairments where the health problem or disability will form a very significant obstacle to getting back to work.

Andrew Selous: What proportion of the current 2.7 million incapacity benefit recipients would be entitled to the new higher-rate disability and sickness allowance if the new rules were applied to them, as they will be in 2008? Does the Minister expect the proportion of new claimants eligible for disability and sickness allowance to be significantly different?

Maria Eagle: The distinction will be made using a functional assessment, and the current percentages, if we use the current personal capability assessment as a guide, are about 80 and 20. I do not expect them to be significantly different in future, but the point of the new programme is that it will provide significant extra help for those on rehabilitation and support allowance and for those on disability and sickness allowance, should they wish to take advantage of it. The much more supportive environment and additional help provided by pathways will provide an extra financial incentive so that many of the 1 million people currently on sickness and incapacity benefit who tell us that they want to work will have the chance to do so, and it is about time that they did.

Tom Harris: Representing a constituency in a city where one in five of the working-age population claim incapacity benefit, I welcomed the Secretary of State's statement to the House last month in which he outlined the changes. However, I have to say that I am not optimistic that these new incentives alone will encourage enough claimants back into work. We have heard about the carrots, but can my hon. Friend the Under-Secretary tell the House which sticks the Government considered using and why they have not been used?

Maria Eagle: I do not think that it is appropriate to talk about using sticks when we are dealing with disabled people. Many such people have been written off largely because the previous Government threw them on to invalidity benefit and abandoned them for years. What they need is help and assistance, not sticks. Through pathways, 90,000 people have so far been helped and 9,000 people have moved into work; and it is easy to forget that 200,000 people have been helped into work by the mainstream new deals. We are learning how to help these people and it is about time that we extended those lessons across the country. That is what Labour intends to do, unlike the Conservative party, which wants simply to privatise—

Mr. Speaker: Order.

Lawrie Quinn: May I congratulate my hon. Friend the Under-Secretary and the staff of the Department for Work and Pensions on the great help that has been afforded to many of my constituents to get them back into work? In an earlier answer, my hon. Friend referred to additional help. Can she say something this afternoon about those rural constituents of mine who have not only mobility problems, but transport problems in getting to work, and therefore need extra help? What assurance can she give them that she will ensure that they have the opportunity to play a full and active part in working life?

Maria Eagle: We want the changes to build on the experience and support that our personal advisers can give to individuals. The importance of various interventions will, as my hon. Friend suggested, vary from place to place. The advisers' discretionary fund enables our staff to make the best use of the money available to provide that assistance according to local conditions. In a rural area, some of the money might be used to ensure that transport is available. Ensuring that our front-line staff have discretion means that the system will be sufficiently flexible to enable people to be helped, whatever part of the country they live in.

Lone Parents

Iain Wright: What steps he is taking to encourage lone parents to move into employment.

Jane Kennedy: We are giving lone parents more choice and more help than ever to move off welfare and into work. We have introduced compulsory work-focused interviews to ensure that lone parents are aware of the help that they can get to move into work.
	Since its launch in October 1998, the new deal for lone parents has helped almost 300,000 people into work and contributed to the increase in the lone parent employment rate to a record high of 55.8 per cent.

Iain Wright: I thank the Minister for her reply. May I suggest that the proposed increases in the minimum wage from £4.90 to £5.35 next year will have a huge impact on lone parents? On Saturday, I was talking to a single mother who works 16 hours a week. She claimed that, taking child care costs into account, the net effect on her weekly income is 53p. Notwithstanding the increases in the national minimum wage, what additional steps will the Minister take to ensure that lone parents are not penalised for wanting to work?

Jane Kennedy: I am grateful to my hon. Friend for what he said about the minimum wage. We are keen to ensure that work pays for lone parents and others and to encourage people to move from welfare into work. The level of the minimum wage is an important calculation in that.
	As the hon. Gentleman is aware, through the tax credit system we are enabling many more families who are in work to access the real benefits of that system. Almost 6 million families were benefiting from child tax credit and/or working tax credit in December 2004. We intend to do more. We will be piloting the payment of an extra £20 a week on top of normal income support, but there will be a condition. We want to engage with lone parents to encourage them to move into work and we must ensure that, in doing so, they see real benefits from that move.

Gwyn Prosser: Will my right hon. Friend acknowledge the contribution made by the hard-working staff in job centres in getting lone parents back into work? With the new deal, unemployment in my constituency has been cut by 61 per cent. and youth unemployment has been slashed by 93 per cent.
	Will my right hon. Friend also acknowledge the vigorous campaign that is being fought in Deal by constituents, Dover district council, Deal town council and the citizens advice bureau to stop the proposed closure of its excellent job centre by the management in Kent? Will she acknowledge that the essence of job centres' duties is to remove barriers, and will she note that my constituency faces more than 1,000 job losses as we speak?

Jane Kennedy: I am aware that my hon. Friend raised the matter during business questions last Thursday. He knows that we are due to meet to discuss it on 7 March, when we can explore the exact circumstances in his constituency and the reason behind the decision to change the distribution of offices and the way in which staff are employed. He knows that, ultimately, those are matters for the chief executive of Jobcentre Plus.
	The House will know that given the major investment in Jobcentre Plus, in the new systems and in the whole revolutionary process, the active engagement in encouraging people into jobs will make a massive difference to my hon. Friend's constituents. We should not be confined to delivering services through buildings alone, and they are now delivered in a wider variety of ways.

Civil Servants

Michael Jack: If he will make a statement on proposed work force changes in his Department and the expected effect on civil service employment in Fylde.

Maria Eagle: As part of its efficiency and modernisation programme, the Department plans to reduce staff numbers by 30,000, redeploy an additional 10,000 posts to front-line services and relocate 4,000 posts from London and the south-east by 2008. There are some 8,589 full-time equivalents in the Lancashire West area, which includes Fylde. Staffing levels in the Fylde area will be affected by the changes, but until further detailed work force planning is completed it is not possible to say what the precise effect will be.

Michael Jack: I thank the Minister for that answer. I have had discussions with the PCS union about one of the items that is clearly being considered by her Department, namely the movement of some 500 people from the programme service division to locations such as Manchester, Salford and Warrington. The union expressed concern about the costs involved in that movement, as no office facilities are currently available outside Fylde for those jobs. The union also believes that some of the skills issues that may be informing the proposed change can be addressed locally through good links with local universities and colleges. Can the Minister look again at the proposal to ensure that it is justified, and will she write to me with details of it?

Maria Eagle: I am happy to do so. It is not in our interests to make changes that end up costing more. These are efficiency savings, not attempts to spend more money on employing fewer people. I am happy to give the right hon. Gentleman that undertaking.

Archy Kirkwood: Will the Minister acknowledge that the issue is one of the biggest facing the Department between now and 2008? Does she accept that the uncertainty about people's jobs in the long term is affecting morale? I understand that the Department still needs to do a little more work before it knows the final number of staff reductions, but when does the Minister anticipate being able to end some of the uncertainty by saying where the job cuts will be made?

Maria Eagle: My right hon. Friend the Secretary of State has made regular statements to the House, and we expect to be able to give more details soon. It is important to do the work in conjunction with our staff and trade union representatives. I fully acknowledge that any such change affects people's well-being and leads to concern for their jobs. We want to ensure that we minimise that uncertainty by making staff and the House aware of what will happen as soon as possible.

Benefit Decisions

Edward Leigh: When his Department's decision-making and appeals action plans will be implemented; and how progress in making the improvements to benefit decision-making arrangements set out in the plans will be measured and reported.

Maria Eagle: We are already implementing the plans across the Department. Progress will be measured in several ways, such as local and national monitoring, customer surveys and the work of the independent standards committee, which will report on progress in its annual report. We will also inform the National Audit Office of our progress.

Edward Leigh: In its 12th report of 2003–04, the Public Accounts Committee found that half of the decisions on disability living allowance and attendance allowance contained errors. What progress has been made since then and will the Department be able to achieve the target of reducing the error rate to a quarter of decisions?

Maria Eagle: I acknowledge the difficulties in decision making on the DLA. That is partly because qualification for the benefit is subjective. We are taking steps to improve training and to ensure that we get more consistent decisions, and we hope to make substantial progress over time. The disability and carers service makes more than 1 million decisions every year, only 8 per cent. of which are appealed; therefore, many of the decisions are correct and satisfy the claimants.

David Taylor: In relation to the 8 per cent. of decisions that are appealed, can the Minister tell the House what plans she has to speed up the appeal process and to review the location of appeals? In some parts of the United Kingdom, such as the east midlands, it can be quite difficult for appellants actually to get to the appeal.

Maria Eagle: I acknowledge that sometimes there are issues when our customers have to go to specific locations. We are piloting enhanced reconsideration processes, which aim to prevent cases that may be appealed from getting as far as the appeal process. We think that it can make a difference if we head off the appeal by checking again, in conjunction with the customer, that we got the decision right. One of the main reasons for a change in decision at appeal is that new evidence is presented that was not available to our original decision makers. A better and more informed reconsideration process could stop many of those appeals from going ahead, and that could be an effective way forward.

Julian Lewis: I am very concerned about the Minister's response to my hon. Friend the Member for Gainsborough (Mr. Leigh). He stated that the National Audit Office found mistakes in 50 per cent. of cases. The Minister's response was that only 8 per cent. of decisions are appealed, which suggests that more than 40 per cent. of people, some of the most vulnerable, who are on the DLA or attendance allowance, are receiving the wrong amount of money. Surely she should be taking a rather more urgent approach than she seems to be taking today.

Maria Eagle: I deny that there is no urgency in the Department's response. The subjectivity of the DLA and attendance allowance—where our decision makers are trying to discover the impact of a condition or disability on the capacity of the individual either to look after themselves or to move around—means that the situation is inherently difficult to pin down. There is no doubt about that; I think that it would be acknowledged by everybody. It is a difficult process in which to make significant improvements, but that does not mean that we are not trying to do so. We are, and I hope that in future we will be able to make much more progress.

Personal Debt

Si�n Simon: If he will make a statement on his Department's strategy to assist people to manage personal debt.

Chris Pond: The best way we can stop people getting into debt is to make sure that we help them get into work and increase their incomes, so the extra 2 million jobs that we have created and the rise in the national minimum wage announced last week, to which my right hon. Friend the Secretary of State has already referred, are important in the over-indebtedness strategy. A joint Department of Trade and Industry and DWP action plan on over-indebtedness was published in July 2004, aimed at increasing levels of financial capability and access to affordable credit and encouraging a savings culture to avoid over-indebtedness.

Si�n Simon: Admirably Churchillian though the Minister's attitude isthat the best way to stay out of debt is to earn morein an age when gaining a credit card seems to have become a rite of passage and it is still possible, especially in working class communities, to borrow 500, repay 5,000 and still owe 10,000, can my hon. Friend tell us a bit more about what the Department could do to educate younger people to be as suspicious of strangers offering free money as they ought to be of those offering free sweets, free drugs or free anything?

Chris Pond: My hon. Friend is right to highlight the dangers, especially for young people, of finding oneself heavily in debt as a result of taking up offers that sometimes seem too tempting to refuse. The strategy to which I referred is cross-departmental and is intended both to increase education about financial resources and to ensure that affordable sources of credit are available in communities where, due to low income and financial exclusion, which we are seeking to address, people find that the only available sources of credit are very expensive and draw them further into debt. We are also working with agencies outside Government; as Members know, the Financial Services Authority has a financial inclusion strategy. We need to ensure that we address the problems faced by the relatively small minority of households that are in debt and for whom such debt can be extremely dangerous.

Nigel Waterson: Does the Minister accept that the Government have created a society where it is easier to borrow than to save and where savings have almost halved since 1997? Is it any wonder that personal debt has spiralled out of control and pension savings, in particular, are hopelessly inadequate?

Chris Pond: No, I do not accept that. Part of the strategy, as I explained, is intended to encourage a culture of savinga culture that was badly damaged during the 1980s. Most of us consider credit to be something that helps us to balance our income and expenditure over time. A small minority of peoplethose in the 7 per cent. of households who find that their debt is such that it can be considered as over-indebtednessneed additional support and assistance, but most people's level of credit is quite sustainable. Our policies of economic stability, full employment, low inflation and low interest rates have ensured that far fewer people find themselves heavily in debt than did when the Conservative party was running the show.

Karen Buck: Law centres, citizens advice bureaux and other advice agencies are often the first line of defence for vulnerable people who have got themselves into debt, yet in many areas, including my constituency, the grant reduction by local authorities and the end of regeneration programmes such as the single regeneration budget have caused budget cuts in those services, sometimes leading to long queues up the road of people waiting for advice, as at Paddington law centre. Will my hon. Friend liaise with his fellow Ministers in the Office of the Deputy Prime Minister and the Lord Chancellor's Department to review the capacity of advice services to meet the needs of vulnerable people in personal debt?

Chris Pond: I assure my hon. Friend that we are doing precisely that to ensure that the sources of advice are available. Of course, guidance is available to our own staff to identify those sources of advice for customers with debt problems. Since April, Jobcentre Plus personal advisers have been able to pay for the provision of debt advice, but we need to ensure that people are aware of the advice that is available and that we do everything possible to ensure that the agencies that provide that advice are sustainable.

Pension Protection Fund

Peter Lilley: Whether public sector (a) pension schemes and (b)   pension scheme members will be required to contribute to the Pension Protection Fund.

Malcolm Wicks: A scheme that is eligible for protection under the Pension Protection Fund will have to pay the levy regardless of whether it is a public sector scheme. However, most public sector schemes, including those with a Crown guarantee, will not come within the ambit of the PPF.
	No statutory provision requires schemes to pass on the costs of the levy to their members. How the costs of the levies are met will be for scheme trustees to decide. It is worth remembering, however, that we expect the levies to average out at about 20 per member per annum and only 10 in the first year.

Peter Lilley: I am grateful to the Minister for that reply. I understand the Government's reason for not asking taxpayers to underwrite the Pension Protection Fundmany taxpayers are not members of pensions fundsbut how do they justify not asking members of public sector pension funds, which are underwritten by the taxpayer, to contribute to the PPF when they require members of private sector schemes to do so? Surely, we as Members of Parliament are beneficiaries of that unfair discrimination, and we all ought to contribute to the protection scheme.

Malcolm Wicks: Let us remember that the PPF is coming into being because of the tragedy and scandal whereby pensioners are left bereft when a company goes bust and a scheme is underfunded. A common-sense comparison would suggest that most people in public sector schemesthe civil service and those in local governmentare not likely to see their scheme go bust, although some non-departmental public bodies do not have a Crown guarantee and will pay a levy. Such bodies include the Arts Council, the Legal Services Commission, Remploy and the royal household.

Dennis Skinner: What advice can the Minister give to several hundred ex-Anglo United workers who have been robbed blind by their employer now that Anglo United, which used to be called Coalite, has finished? Is he aware that, in a previous answer, he suggested that Anglo United was not in the scheme that was announced on 22 February? Why was it not included? Why is it not included in the protection plan? Surely the Government should find a way to try to protect the few hundred workers at what was Bolsover Coalitetheir previous employer has robbed them blind.

Malcolm Wicks: I hope that my hon. Friend will allow me to write to him about that scheme. The financial assistance scheme covers 380 pension schemes. I do not know the particulars of the scheme that he mentions, but the House must be very careful not to ask the taxpayer to underwrite schemes with solvent employers because some people may seek to dump pension liabilities on the taxpayer or the new PPF.

BILL PRESENTED

Mr. Speaker: Order. I understand that the hon. Member for Stroud (Mr. Drew) has been held up because of the snow. Therefore, the notice for the presentation of his Bill will take place at some other time.

Prevention of Terrorism Bill (Programme) (No. 2)

Hazel Blears: I beg to move,
	That the following provisions shall apply to the Prevention of Terrorism Bill for the purpose of supplementing the Order of 23rd February 2005
	1. Paragraphs 3 and 4 of that Order shall be omitted.
	2. Proceedings in Committee of the whole House and any proceedings on consideration shall (so far as not previously concluded) be brought to a conclusion six hours after the commencement of proceedings on the Motion for this Order or at 10.00 p.m., whichever is the later.
	3. Proceedings on Third Reading shall (so far as not previously concluded) be brought to a conclusion one hour after the commencement of those proceedings.
	In programming today's business, the Government are, of course, very conscious of the speed with which we are having to consider this legislation, but we have tried, as far as possible, to ensure the maximum time available to the House to consider its provisions. Clearly, we are in this position today because of the House of Lords judgment that was made on 16 December. That judgment set out the reasons why it was considered that the existing part 4 powers were not compatible with the European convention on human rights. Therefore, it is necessary for us to have a new legislative framework in place by 13 March.

Edward Garnier: When the Minister or her officials drafted the timetable motion that we are now discussing, did she or did she not know how many amendments and new clauses would be tabled? Indeed, did she know the contents of the provisional selection of amendments by the Chairman of Ways and Means?

Hazel Blears: I am not aware that we had that information at the time that the programme motion was drafted. However, I can try to assure hon. Members that we will seek this afternoon to have as full a debate as we can on the amendments and new clauses that have been tabled.

Several hon. Members: rose

Hazel Blears: I will give way again in a moment.
	Today, we have guaranteed six hours of debate in Committee or until 10 pm, whichever is the later. We have agreed to an hour's extension to the business to protect the time for debate on Third Reading, and also to Opposition requests that no knives are placed on the debate in Committee so as to try to retain the maximum flexibility to consider the amendments that have been tabled.

Andrew MacKinlay: Can my hon. Friend clarify the position? I understand that we have been told to listen with bated breath to the Home Secretary this afternoon, when he will show that he has been listening to the debate and will come forward with alternative proposals. However, those alternative proposals or amendments will not be before the House today; they will appear on a promissory note saying that he will introduce them in the House of Lords. Is that correct? If it is, it really is bad form. We should have allowed a day or two to elapse so that the House of Commons could discuss the amendments rather than there being a promise that they will be introduced in the House of Lords.

Hazel Blears: My hon. Friend will have to listen to today's debate as it unfolds and to the Home Secretary. I have said on many occasions that we have been listening very carefully to the strength of feelingnot just on the Government Benches, but on the Opposition Benches. I have no doubt that, as the debate develops today, we will see that matters are being taken fully into account. I am sure that my hon. Friend can make his points at that stage.

Several hon. Members: rose

Hazel Blears: I will give way in a moment.
	We need to have a legal framework in place by 13 March. Otherwise, without the renewal of the part 4 powers, we could face the prospect of looking at the possible release of detainees without any legal framework to provide some controls in respect of those detainees. That is why it is important that we consider this legislation today with some urgency.

Dominic Grieve: The hon. Lady referred to the Opposition's view on knives in   the programme motion. When the Government approached us to suggest that there should be knives in the programme, we did not even know the programme on which knives were to be imposed. It is not entirely correct to suggest that the Government have acceded to our request. It is true that they have not imposed knives, but they would not have known where they should fall.

Hazel Blears: As I said, we are trying to ensure that there is sufficient flexibility to enable the various points that hon. Members have raised to be considered.

Patrick Cormack: Even if one accepted what the hon. Lady said about the deadline, why could we not have had two days this week to consider such an important Bill?

Hazel Blears: A decision has been taken to consider the Bill today and we need to make progress with it. I entirely accept that its passage is very swift, but the time available will enable us to scrutinise the big issues of principle that remain matters of contention.

Several hon. Members: rose

Hazel Blears: I am sure that we can have a good debate this afternoon. [Hon Members: Will the Minister give way?] I will give way to hon. Members in due course, but not on the basis that they are shouting at me.

Gwyneth Dunwoody: My hon. Friend is well known for her flexibility and tolerance. Given that this is a basic and important question of not only the rights of the House of Commons, but those of every United Kingdom citizen, surely it would not be beyond the bounds of possibility for the Leader of the House to come to the other parties through the usual channels and ask for this week's programme to be rejigged so that we could have at least one more day to consider the Bill. Failure to do that will at least leave the Government open to the interpretation that they are frightened of free speech.

Hazel Blears: My hon. Friend is absolutely right that we will be discussing serious and fundamental matters today and the Government are not afraid of that debate or unwilling to enter into it constructively. The programming of the Bill has been considered by the usual channels and the Leader of the House, so I suggest that we press on with the business.

Peter Bottomley: The hon. Lady said that she did not know how many amendments and new clauses would be considered. By her calculations, how many minutesor secondswill be available to discuss each amendment and new clause?

Hazel Blears: At the last count, about 160 amendments had been tabled, although I am sure that there are more now. As the hon. Gentleman well knows from his extensive experience in the House, some matters are more complex than others and some take longer to discuss. Some matters can be dealt with relatively quickly, but sometimes the shortest amendments take the longest time to discuss because they are more fundamental than others.

Douglas Hogg: The hon. Lady has already conceded that she did not know the number of amendments and new clauses to be considered at the time at which the revised programme motion was tabled, so what conceivable grounds has she to say that the programme motion gives anything like sufficient time or that it is based on proper information?

Hazel Blears: As I said, I was aware of 160 extensive amendments when I left on Thursday afternoon. Without the use of knives, I believe that we can have a wide-ranging and flexible debate on the principles in the Bill.

Mark Fisher: The Minister concedes that there are a great many amendments, all of which relate to important matters. She also conceded a few minutes ago that the Bill is being rushed through the House and that we will have only a brief time to discuss such matters. Surely she can take up the extremely reasonable point made by my hon. Friend the Member for Crewe and Nantwich (Mrs. Dunwoody) and ask the Leader of the House to rejig this week's schedule. If she did that, she would get the support of every other party and most of her Back Benchers.

Hazel Blears: I do not agree with my hon. Friend. I did not say that the Bill was being rushed. I said that its passage was swift, but that we could nevertheless have a good, constructive and reasoned debate.

David Davis: Just for absolute clarity, let me make it clear that the Opposition would be very willing to discuss with the Leader of the House any further rejigging of the motion to get proper debate on this important subject.

Hazel Blears: As I said, I think that we should press on with the business and maximise the time that there is for debate.

Several hon. Members: rose

Hazel Blears: I give way to the hon. Member for Buckingham (Mr. Bercow).

John Bercow: I am sorry that the Minister is making the speech that she is making because she must know that it is an undignified performance. Given that Home Office Ministers usually pride themselves on speaking frankly, why is it that she has not felt able, in response to my hon. Friend the Member for Worthing, West (Peter Bottomley), to explain to the public that the Government's belief is that for more than 180 new clauses and amendments, it is satisfactory that the House should have less than two minutes for the consideration of each? If she does not think that that is a disgrace, she ought to do so.

Hazel Blears: I do not think that it is a disgrace. The hon. Gentleman will know, from his extensive parliamentary experience in this place, that many amendments are consequential and relate to minor matters. Some deal with serious matters of principle, and he is right that we should have time to discuss thosebut if he thinks for one moment that every amendment and new clause carries equal weight, he is not the hon. Gentleman I thought he was because he clearly has extensive parliamentary experience in that regard.

Several hon. Members: rose

Hazel Blears: I propose to press on. I have no more to add to the programme motion. [Interruption.] We are clearly not going to make progress if everyone shouts at once. I did not see the Father of the House and happily give way to him.

Tam Dalyell: May I gently say that these proceedings bear no resemblance to the House of Commons to which I was first elected, because the last 10 minutes would not have been left to a Minister of State? It is unfair for a Minister of State to have to deal with this. What more pressing engagement than being in the House of Commons at this moment have the Home Secretary, the Chief Whip and the Leader of the House got?

Hazel Blears: I am more than happy to deal with the programme motion. Once we press on with the business, I have no doubt that my right hon. Friend the Home Secretary will address some of the serious and fundamental matters of principle that face us.

Alan Beith: If the hon. Lady looks back on the collective parliamentary experience to, say, the Prevention of Terrorism (Temporary Provisions) Act 1974, she will see that it was discussed through the night and all clauses were examined. That is a very different situation from the one in which I find myself now. I am particularly interested in clause 9 and the schedule, because they will determine whether a person can see the evidence on the basis of which their liberty might be taken away or restricted, but I see no prospect of us getting that far on a six-hour timetable. Why not revert to the 1974 practice and run the business through until it is completed, as it was successfully done then?

Hazel Blears: These matters have been considered by the usual channels in the House and the business managers. The programme motion is in accordance with that consideration. I can only reiterate

Several hon. Members: rose

Hazel Blears: There are only so many ways in which I can say this, Mr. Deputy Speaker. We propose to press on today, to have the debate, to consider these serious issues and to ensure that we have as much consideration of them as possible.

Jenny Tonge: Will the hon. Lady not at least concede that by pressing on with this business in almost indecent haste, when one considers the number of amendments

Douglas Hogg: It is indecent.

Jenny Tonge: I said indecent.

Douglas Hogg: The hon. Lady said almost.

Jenny Tonge: Does the Minister agree that that haste will lead people to believe that this action is more an attempt to justify the Government's disastrous foreign policy than it is to secure the security of the people of this country?

Hazel Blears: I reject that entirely. The people of this country are concerned that we get proper legislation in place which meets the threat that we face and provides us with a framework to ensure that we protect national security while striking that difficult balance with individual liberty. That is what the people of this country want us to do, and they want us to get on with it. I commend the programme motion to the House.

Dominic Grieve: This is a very sad occasion. The House must consider carefully whether it wishes to take a grip of its own procedures or simply allow the Executive to roll us over and treat us as their rubber stamp. The Minister will know that I have always been willing when business has gone into Committee, to try to meet agreed timetables when they are reasonable. I have no objection to a sensible timetable if it can help to provide a degree of certainty for the House, but what we are being asked to do today is scandalous.
	One need only look at the 230 amendments that have been tabled, the 10 new clauses and the 14 groups to realise that there is absolutely no possibility of our doing justice to what must be one of the most important pieces of legislation that this House has had to consider since the second world war. We are being asked to do this in a way that guaranteesthe Minister admitted it in her commentsthat this House cannot properly scrutinise the legislation.
	Let me pick up a point that was made earlier. The Minister seemed to take the view that as long as the House could debate the principles, the detail did not matter. Yet the Committee stage of a Bill is precisely when the House is supposed to do its duty by looking at the details. Let us take the schedule as one example. Paragraph 4(3)(c) specifies that the Secretary of State will never be required to disclose information if
	he does not propose to rely on it in proceedings.
	That means that he will be under no obligation to disclose relevant exculpatory material to the court. So if one informer says that somebody is a terrorist but somebody else says that he is not, the Home Office can choose to rely on and disclose what the informer whom it prefers has said, and not do so for the informer whose view it does not support. That is the sort of issue of detail that the House is to be wholly unable to consider in Committee because the schedule is at the very end of the Bill and there is absolutely no possibility of our reaching it.

Si�n Simon: I had not realised that there was an exact formula for the number of amendments and the time for debate in Committee. Perhaps Conservative Members could give me the number so that I can better understand exactly how many minutes per new clause and amendment they want.

Dominic Grieve: The hon. Gentleman can make the calculations for himself. I would have thought that he had been in this House long enough to know how long it takes to have a sensible debate. He knows the number of his colleagues of all parties who want to participate in the debate, and it is perfectly obvious that we cannot do justice to the legislation.

Douglas Hogg: Would my hon. Friend care to remind the hon. Member for Birmingham, Erdington (Mr. Simon) that if this Bill had gone into Committee in the ordinary way, it would not have taken less than 25 hours to consider, even on an agreed timetable?

Dominic Grieve: My right hon. and learned Friend is right. That highlights the massive deficiencies in the House's procedure. Is the Minister really going to ask us, when we have had six hours of debate in Committee and one hour on Third Reading, to maintain consensusas she wantsand send the Bill to the House of Lords with our approval? I could not approve a Bill on that basis under any circumstances. The Minister is ensuring that the Government's desire to try to achieve a meeting of minds on an important issue is fatally undermined from the outset.

Edward Leigh: Surely it is a question not just of the number and complexity of the amendments but of the principle involved. We are talking about 800 years of legal precedent. I understand that that leaves us one hour for every 100 years of legal precedent.

Patrick Cormack: It is less than that.

Edward Leigh: Less, indeed.
	The Minister clearly has not got the authority to change the Government's view today, so can we redouble our efforts through the usual channels and through every channel to try to have a decent debate, so that we can reach some consensus to preserve civil liberties in this country?

Dominic Grieve: I agree with my hon. Friend. May I make one point clear? The Minister suggested that the decision had been arrived at after discussions through the usual channels, implying that we have had some part in the process. I assure my hon. Friend that we have not. We have consistently asked for a proper period of time to consider this legislation. I entirely agree with what was said earlier: I do not like going home late or, for that matter, in the early hours of the morning, but this is a Bill for which I would be perfectly happy to stay all night. It is, without doubt, the most important legislation that I have examined since I entered this House.

Si�n Simon: I am not being silly about the numbers of minutes. According to the analysis of the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg), eight minutes is fine, but two minutes is wrong. Conservative Members are being childish and ridiculous.

Dominic Grieve: I am sorry to hear the hon. Gentleman demeaning himself in that fashion.
	Not only is today's timetable grotesque but, because of the way in which the matter has been handled since Second Reading, hon. Members have had grossly insufficient time in which to consider the detail of the legislation and to select their amendments. The Clerks of the House have had great difficulty in grouping the amendments, which is the inevitable consequence of requiring amendments to be tabled in haste. It would have been so much better if we had had more time to consider the matter.

Brian Sedgemore: I am grateful to the hon. Gentleman for giving way, which the curmudgeonly Minister would not do. It would help our proceedings if we knew which amendments the Government will propose within the tight timetable. Is the hon. Gentleman aware that we have received absolute and categorical assurances from the press that there is a letter in the post to all of us setting out the Government amendments? Does he have a copy yet?

Dominic Grieve: Well, I can tell the hon. Gentleman that I have a copy of a letter from the Home Secretary, which tells us that the Government will amend this Bill in another place. We are being asked to pass this legislation, which is of huge constitutional and legal significance, on the basis of promises that will be fulfilled elsewhere. That is an impossibility.

Douglas Hogg: On a point of order, Mr. Deputy Speaker, I am sorry to interfere with my hon. Friend's speech, but he has just made an important statement. He has received a letter, which will apparently be sent to all other hon. Members, about the future progress of the Bill, but most hon. Members have not received such a letter. Should we not stop these proceedings until we are in a position to read the letter, which is apparently important?

Edward Garnier: Further to that point of order, Mr. Deputy Speaker. A note entitled, Note on non-derogating control orders, was handed to me in the Lobby. It is dated 28 February and it is unsigned, although I assume that it comes from an agent of the Home Office. Will you confirm that it has been handed not only to me, but to other Government and Opposition Members? It would be a great pity if Government Members did not know what their Government were doing in their names.

Patrick Cormack: Further to that point of order, Mr. Deputy Speaker. The situation is wholly unsatisfactory. Will you use your powers to stop the clock and suspend the sitting to allow all hon. Members the chance to read that letter, and Government and Opposition Front Benchers the chance to work out a sensible programme?

Mr. Deputy Speaker: As I understand it, a note has been placed in the Vote Office and it should be available to all hon. Members. I am not aware of the letter to which hon. Members have referred, but it is usual for any matter which is to be relied on in debate to be made available to all hon. Members. I am not aware of the extent to which those documents are available. On previous occasions, the Chair has ruled that anything that is vital or relevant to the debate should be available to all hon. Members.

Dominic Grieve: Further to that point of order, Mr. Deputy Speaker. The letter is addressed to my right hon. Friend the Member for Haltemprice and Howden (David Davis). It arrived less than an hour ago by fax and is signed by the Home Secretary, who makes two points of which the House should be aware. First, he says:
	I shall make each of these points clear in the debate this afternoon.
	Where is he? I cannot see him. Secondly, he says:
	I hope that this letter makes my intentions clear and so I am placing a copy of this letter in the library of the House for the benefit of all Members before the substantive Committee debate begins.

Mr. Deputy Speaker: I am grateful to the hon. Gentleman for clarifying that. It appears to the Chair that both documents that have been referred to have been made available in the appropriate ways to which the House is accustomed. [Interruption.] Well, the intention is that they should be available. On that basis, we must proceed with the programme motion.

Patrick Cormack: On a point of order, Mr. Deputy Speaker. If it is right, as has been read out by my hon. Friend the Member for Beaconsfield (Mr. Grieve), that the Home Secretary expects us to see the letter in the Library before the substantive debate beginsin other words, before the debate that follows the programme motion beginswould you please suspend the House so that we can do it?

Mr. Deputy Speaker: I have to assume that the Home Secretary's intention, as stated, is being fulfilled. That is relevant to the substantive debate, rather than to the programme motion. It is a separate issue from the question of the suitability of the programme, which the House is discussing at present.

Alan Williams: Further to that point of order, Mr. Deputy Speaker. I gather that, as has been said, a copy has been placed in the Library of the House of Commons, but a single copy in the Library would lead to an unseemly queue if every hon. Member went along to make a photocopy. It would seem appropriate if the Department or the Library were asked to provide copies as rapidly as possible for circulation to Members in the Chamber and those who want it from the Vote Office. I hate to say this, but, if necessary, the House should be suspended until they all have a copy of the letter, which I have.

Kenneth Clarke: Further to that point of order, Mr. Deputy Speaker. As I understand it, what the Home Secretary is trying to communicate to us through the letter in the Library is that, presumably because we have only six hours for debate, he does not intend to table amendments in the House today, but he has already formed a clear intention of amending the Bill, and he will table those amendments in another place once we have finished our proceedings. I have never heard of that process being followed before. It is an outrage. Could you suspend the sitting while the usual channels consider whether the Government can proceed with an important Bill on that basis? It reduces our proceedings to a farce if we know that we are about to discuss a Bill that is going to be amended, if the Government get their way, in another place. It is an intolerable contempt of the House to proceed in that way.

Several hon. Members: rose

Mr. Deputy Speaker: Order. As I understand it now, the letterI have a copy in my handis being made available in the Vote Office so that it will be available to all Members before the substantive debate begins. By continuing this argument, time is being taken out of the overall time available, which the Chair does not control. There is a programme motion before the House, which the House has yet to decide upon. That is the first step the House has to take

Clare Short: My hon. Friend the Member for Reading, West (Mr. Salter) is distributing the letter.

Mr. Deputy Speaker: Order. If I may say so to the right hon. Lady, there is a method for doing these things. If hon. Members wish to have documents relating to the debate, it is more orderly for those to be collected and not distributed while the occupant of the Chair is on his feet. The programme motion before the House is precedent to the business[Interruption.] Order. That has to be determined first. The House must make a decision on that. If the House decides on the programme motion, the business goes ahead. Anything that happens outside the Chamber between the usual channels is nothing on which the Chair can adjudicate. I advise the House that we should proceed with the programme motion and decide thereafter how we deal with the substantive order.

Menzies Campbell: On a point of order, Mr. Deputy Speaker. All legislation is important, but surely no legislation is more important than legislation that might have the effect of depriving the individual citizen of his or her liberty. I feel great discomfort about the way in which these proceedings are being conducted, particularly in the past 15 or 20 minutes. Would it not be appropriate for you to consider the applications made on both sides of the House for a suspension so as to allow right hon. and hon. Members the opportunity to study the documents that have now been made available?

Patrick McLoughlin: Further to that point of order, Mr. Deputy Speaker. This has a great resemblance to what happened a few weeks ago when the Lord Chancellor had entered into correspondence with people outside the House. Mr. Speaker was very annoyed that we did not get proper notice of the letters that had been exchanged earlier that day. Surely the Government are again treating the House with total contempt. Is the Chair happy with that?

Mr. Deputy Speaker: The hon. Gentleman must not attempt to second-guess the state of mind of the Chair. The Chair is attempting to conduct these proceedings in an orderly manner. I have suggested to the House that the business motion, which has so far appeared to attract criticism, still has to be decided upon by this House. The decision of this House on the programme motion determines whether we proceed on the substantive business in the way that is laid out. I think that that is the best way for the House to proceed.

Clare Short: On a point of order, Mr. Deputy Speaker. May I gently remind you that it is normally seen as the duty of the Chair to protect the House of Commons? We all heard on the news at midday that a letter had been sent to us. I went to the Vote Office before I came into the Chamber, and the letter was not there. This is a crucial consideration in our attitude to the allocation of time, as well as to the content of the Bill. I gently suggest that for the Chair to defend the behaviour of the Government, which dishonours this House, is to take on a duty that is not in line with the way in which the Chair normally sees its role.

Mr. Deputy Speaker: I do not think that I made any such imputation. I have merely said, or thought that I had merely said, that the documentation to which reference had been madetwo separate itemsnow appeared to be available, and that the orderly manner for Members to respond to that is to collect them from the place where they have been put. I was simply objecting to a disturbance in the House while I was on my feet about the distribution that was going on unofficially. These documents are now, as I understand it, in the Vote Office and available to all Members.

Gwyneth Dunwoody: On a point of order, Mr. Deputy Speaker. I believe that the House has made it very clear that it wants to suspend and that the Chair is being put in an impossible position. It could help us if you would indicate whether it is your intention to accept manuscript amendments in any discussion. That could influence the decision of individual Members who might feel very strongly that, if you were so inclined, they could allow the discussion to go ahead.

Mr. Deputy Speaker: Manuscript amendments can be submitted, but must of course be considered in the usual way, so I cannot give any guarantee that simply because such an amendment is submitted it will necessarily be chosen for debate.

Peter Bottomley: On a point of order, Mr. Deputy Speaker. I have one small point and one more major one. The small point is that it is not yet clear to the House whether the Government are circulating one document or two. A statement from a Minister would clear that up.
	The substantive point is that, if the Home Secretary is proposing amendments to the Bill and has decided that he does not want to put them to this House on Report, that is probably because six hours does not give us enough time to discuss them. That is why this matter is relevant to the programme motion. It would be a courtesy and a help to the House if the Leader of the House or the Home Secretary could come here to say what those amendments would be. We could then decide whether to extend the programme motion or reject it so as to allow the Government amendments to be considered at the Report stage of this important Bill.

Mr. Deputy Speaker: I can say to the hon. Gentleman that there are, to my knowledge, two documents, which, also to my knowledge, are both now in the Vote Office.

Frank Field: On a point of order, Mr. Deputy Speaker. When the Home Secretary introduced the Bill, he said that the country faced a threat the like of which we have never faced before. Looking at the rest of this week's business, I would suggest that nothing on our agenda ranks higher than the consideration of this measure. Clearly, there has been pressure from both sides of the House for the Government to give us more time to consider whether it is proper or appropriate given the level of threat that we face. The Opposition parties have a day's debate this week. If the Government are unwilling to give us some of their time to extend the timetable, might not the Opposition give us their day so that we could at least have two days' debate on the Committee and Report stages?

Dominic Grieve: Yes, we would.

Frank Field: Given that the Opposition are prepared to give us their Opposition day to extend the timetable on the Bill, may we ask your advice, Mr. Deputy Speaker, on how we might act positively on that helpful suggestion?

Mr. Deputy Speaker: The Chair is unable to make any suggestion about the way in which the usual channels work. That is one of the great mysteries of the House. However, it is always open to the usual channels to act in the way that they think fit.

Robert Marshall-Andrews: On a point of order, Mr. Deputy Speaker. I want to ask your assistance on a matter that stems from a point that was raised earlier. What is happening is unprecedented in my experience and that of hon. Members who have been here much longer than me. Many serious amendments have been tabled on the derogating aspectsthe most important elementsof the Bill. How can hon. Members possibly debate amendments to a Government Bill that is not, in fact, the Government Bill? We are told that there are inchoate, as yet unexpressed and undrafted amendments that the Government will table in the House of Lords. I seriously ask how can the House conceivably debate those amendments?

Mr. Deputy Speaker: The hon. and learned Gentleman, in making those remarks, seeks to draw the Chair into the debate. The House is trying to determine precisely that issue in considering the programme motion. The Chair cannot comment on that.

Alan Beith: On a point of order, Mr. Deputy Speaker. I do not recall an occasion of such importance, with points being raised on the way in which the House should proceed, when the Leader of the House has not hurried into the Chamber, if he was not already present. In my experience, the Chair often has to rely on the Leader of the House to take some action following any expression of concern from the Chair. Is there some way in which you can communicate to the Leader of the House that he should be here to assist the House in finding a way out of the difficulty of ensuring that the measure is properly debated?

Mr. Deputy Speaker: There is an admirable system of electronic communication around the building and I would be surprised if most hon. Members were not aware of the proceedings.

Simon Thomas: On a point of order, Mr. Deputy Speaker. Have we been in order for the past 37 minutes or so? It appears that we are discussing a programme motion for allocation of time to consider amendments that will be redundant because the Government intend to amend the Bill in their own way in another place. Before we came into the Chamber, the letter and the documents were not available to hon. Members such as me. We have spent 25 minutes discussing a programme motion for which relevant documents were not available before we began the debate. Is that in order? If not, surely it would be better to suspend proceedings, get the information and begin the process again.

Mr. Deputy Speaker: We are in danger of repeating ourselves. I have said that the documents are available. Their absence at the beginning may have been unsatisfactory in the eyes of some hon. Members but they are available now.

Mark Fisher: On a point of order, Mr. Deputy Speaker. The letter may be available but the amendments are not. As the guardian of the House's rights, will not you protect us by ensuring that we have the papers that are relevant to the debate? The only way in which that can happen is to have the amendments.

Mr. Deputy Speaker: I am afraid that that matter is outwith my control. It is not unprecedented for the House to be informed during the course of a debate that amendments, sometimes not completely specified, will be tabled in another place. We are in that position today. It is not for me to comment on the suitability of that, but it is not without precedent. In the circumstances, the House must rely only on the Home Secretary's letter.

Dominic Grieve: The House will have heard the comments and representations that were made in the points of order. The programme motion prevents proper consideration of a most important Bill. Irrespective of hon. Members' views on the measure, I urge them to take back control of our proceedings and vote against the motion.

Mark Oaten: In the short time left, I will simply say that, in our Second Reading debate last Wednesday, we saw Parliament at its best, but what is taking place this afternoon shows us Parliament at its worst. The problem is that the letter from the Home Secretary makes critical changes to the Bill, which will undermine the debate on the first group of amendments and make nonsense of the process that we shall go through in the next few hours.

Crispin Blunt: The hon. Gentleman says that we are seeing Parliament at its worst, but I believe that the responsibility for this state of affairs lies with the Government, not with Parliament.

Mark Oaten: Unfortunately, though, this reflects on all of us, whether it is this Government or any other who have proposed the measures that we are considering.
	I suggest to the Minister that we need not have reached this situation in the first place. This problem has existed for three years and the Liberal Democrats have consistently pointed out that the Government should have tackled it during that time, rather than leaving it   until a point at which, because of a Law Lords judgment, we are faced with such a short time scale. It cannot be right that we have to deal with such critical issues in such a short period of time.
	These are not small matters. We shall have only two hours in which to discuss whether a judge or a politician takes certain decisions, although the Home Secretary is going to help us out with that later. We shall probably have only two hours in which to discuss the standard of proof. We might have only an hour to consider whether evidence can be heard in certain situations and a similar time to discuss what the control orders will involve. It cannot be right to rush such fundamental issues through in six hours.
	I am sure that all hon. Members want to try to resolve this issue in a way that will prevent a terrorist attack from taking place in this country, while ensuring that we defend our strong principles of justice. We are not being allowed to get into that debate this afternoon or to do justice to that difficult balancing act. I have two questions for the Minister, and I hope that she will have time to respond to them.

Patrick Cormack: On a point of order, Mr. Deputy Speaker. I apologise to the hon. Member for Winchester (Mr. Oaten) for interrupting him. As it has been indicated that the official Opposition would be prepared to allow this debate to continue on Wednesday, would you accept a manuscript amendment to the programme motion to enable that to happen?

Mr. Deputy Speaker: No. We have only three minutes of the debate on the programme motion left, and I could not accept such an amendment. If there is any question of more time being provided by an attempt being made through the usual channels to do so, that is how it will have to be done. If the programme motion is accepted, we shall move on to a debate that might be determined by the hours set out by the programme motion or might be extended by decisions taken elsewhere. At this stage, however, the Chair does not know what will happen in that regard.

Mark Oaten: I hope that the Home Secretary will confirm that he will come to the Floor of the House to explain his letter, so that we have a proper chance to debate that matter later. It is totally wrong that four days have been allowed for this debate in another place, while this House has only two. We find thatunacceptable, and we shall vote against the programme motion.

Douglas Hogg: The hon. Member for Winchester (Mr. Oaten) has made most of the points that I wanted to make, but I want to add a further comment to the Minister. We have been told that we must rush this Bill through. That is simply not correct, because it is not necessary to have new legislation of this kind in place by 13 March. The truth is that the detainees in Belmarsh could be let out tomorrow without there being any danger whatever to the state. The point has already been made that they are not going to be subject to house arrest. They are going to be placed under surveillance and they can be kept under surveillance without any new legislation being passed, so there is no pressing need for the Bill.
	If there were a pressing need for this legislation, it would be the fault of the Government, because they have had since last December to contemplate the terms of the House of Lords judgment. They have had more than a year to reflect on the contents of the report prepared by Lord Newton. The fact that we are where we are now is solely and exclusively the fault of the Government. What they are doing is a disgrace. It is profoundly undemocratic, it undermines the liberties of each and every one of us, and this House should have no part of it. I urge the House to recover its authority over its own proceedings, and to reject this guillotine.

Eric Forth: It is worth noting, Mr. Deputy Speaker, that the amendments and new clauses already referred to were selected by you as being worthy of debate. There should be no doubt that the Chair told the House Here are the matters that we believe are worthy of debate: 13 distinct groups of amendments

It being forty-five minutes after the commencement of proceedings on the motion, Mr. Deputy Speaker put the Question, pursuant to Standing Order No. 83A (8).
	The House divided: Ayes 278, Noes 185.

Question accordingly agreed to.

Edward Garnier: On a point of order, Mr. Deputy Speaker. I am not sure whether we are yet in Committee or whether you are still in your role as a Deputy Speaker of the House, but in either guise, will you allow me to read a few brief lines from the letter sent by the Home Secretary to my right hon. Friend the shadow Home Secretary, which I have now had a chance to look at? I will be quick. It states:
	The new procedure for derogating control orders will be as follows. The Secretary of State would make an ex parte application to the High Court for an order. The application would be heard by the judge as quickly as possible . . . The order would be subject to automatic referral to the full court for an inter-partes hearing.
	To me, that amounts to a wrecking amendment by letter. If that is true and that is the Government's intention, clauses 1, 2, 3 and 4 of the Bill are otiose

Mr. Deputy Speaker: Order. The hon. and learned Gentleman must know that this is a matter for debate. If the House moves into Committee, these matters can be debated then. That, indeed, is the time for all those points to be considered. Any amendments or intended amendments will be taken into account then; we cannot have this matter debated as a point of order.

Several hon. Members: rose

Mr. Deputy Speaker: Order. I advise the House that we are now moving into Committee. We must complete that process[Interruption.] Order.

Orders of the Day
	  
	Prevention of Terrorism Bill

Considered in Committee.
	[Sir Alan Haselhurst in the Chair]
	[Relevant documents: First Report from the Joint Committee on Human Rights, Session 200405, HC 389, Prevention of Terrorism Bill: Preliminary Report; Memoranda laid before the Constitutional Affairs Committee, HC 323II, on the Operation of the Special Immigration Appeals Commission (SIAC); and Uncorrected Minutes of Evidence taken before the Constitutional Affairs Committee on 22nd February 2004, HC 323i, Session 200405, on the Operation of the Special Immigration Appeals Commission (SIAC).]

Douglas Hogg: On a point of order, Sir Alan. My hon. and learned Friend the Member for Harborough (Mr. Garnier) has pointed out that substantial amendments have been tabled to the initial clauses of the Bill. The problem is that there are so many amendments that if we debate the initial clauses at the start, we will be unable to debate the later ones, which may remain in the Bill. Can we invite the Home Secretary to tell us which clauses are going to be so substantially rewritten that we need spend only a relatively short period debating them? Otherwise, we are going to debate clauses that are not going to form part of the Bill. In those circumstances, the schedule that the right hon. Member for Berwick-upon-Tweed (Mr. Beith) wanted to debate, for example, may not be debated at all.

Alan Haselhurst: I have to tell the right hon. and learned Member that that is entirely a matter for the Home Secretary. If he seeks to catch my eye, he can deal with the matter. No doubt he will have heard what the right hon. and learned Member said.

Kenneth Clarke: Further to that point of order, Sir Alan. I, too, have read the letter mentioned by my hon. and learned Friend the Member for Harborough (Mr. Garnier). None of us was aware of it until the Division provided an opportunity to get it. As I read the Home Secretary's intentions, if the Bill is amended as he proposes, it will make the entire first group of amendments otiose and unnecessary, so we could be about to waste a considerable amount of time debating amendments that will fall by the way. Will you, Sir Alan, invite the Home Secretary to table in manuscript form as quickly as possible the amendments that he describes in the letter? We must know exactly what we are debating. As far as I am aware, the only reason for not debating the amendments that have been proposed so far is that the Government do not want the Committee to discuss them. They prefer to wait until the Bill goes to the other place, where there will be more time to deal with them.

The Chairman: I would have to say to the right hon. and learned Gentleman the same as I said to the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg)that the Home Secretary could clarify the position if he were to catch my eye early in the debate. It would then be for the Committee to determine the amount of time that it wished to devote to each group of amendments that Iin good faith, I would addhave selected.

Charles Clarke: Further to that point of order, Sir Alan. I would be happy to clarify the position. To be candid, I thought that I was being helpful to the Committee in respect of its consideration of these matters by writing the letter that was mentioned. Since Second Reading last Thursday, I have been considering as fully as I can many of the issues raised on both sides of the House. The choice that I faced was whether to respond to the debate on the first group of amendments, summing up my conclusion at that point, or to seek to help the Committee by letting the position become clearer at an earlier stage of our proceedings. That is why I wrote the letter.
	In response to the points of order, and if it is convenient to you, Sir Alan, I would be happy to set out clearly the conclusions that I summarised in the letter in order to help the Committee's consideration at this stage. If, on the other hand, you would prefer me to deal with that later, I would be happy to take that advice, too. I defer to you, Sir Alan, as to which of those two courses I should follow.

Eric Forth: Further to that point of order, Sir Alan. Is not the problem facing us, notwithstanding the Home Secretary's attempt to be helpful, that we cannot prejudge whether the Lords would accept any of the amendments that he said he would submit to their lordships rather than to this Committee? We must debate the Bill and the amendments as they are before us, because even if the Home Secretary has generously decided to tell us what he thinks he will do in another place, he cannot know whether the other place will accept the amendments.

The Chairman: I shall try to help the Committee as best I can. For the sake of good order, the clarification and debate should take place not on a point of order, but on the first group of amendments. I can give the Committee an undertaking that the Home Secretary will have an early opportunity to catch my eye. Then, depending on what he tells the Committee and its reaction to that, it will be able to judge what speed it wishes to make on the first group of amendments. I shall be as flexible as possible, to help the Committee to cover the substantive matters for discussion.

Several Hon. Members: rose

The Chairman: Order. We are taking time from the debate. The Home Secretary said that he was anxious to say something of substance to the Committee. I am trying to say that for the sake of good order, that should be said on the substantive debate, which I am anxious to start.

Patrick Cormack: Further to that point of orderI am trying to be helpful, as you are, Sir Alan. In view of what the Home Secretary said in his letter and at the Dispatch Box, would it not be sensible for the Committee to have a brief suspension so that the Home Secretary can table some amendments that we could then debate? Otherwise, we shall debate amendments that are, as my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) said, otiose.
	You have already said, Sir Alan, that you are willing, in principle, to consider manuscript amendments. The Home Secretary clearly knows the sort of manuscript amendments he would submit and if the Committee suspended, even for a quarter of an hourcertainly no more than half an hourthat could be done.

The Chairman: I do not believe that a suspension would be to the advantage of the Committee, because that would take further time from the debate, on which the House has agreed a programme motion which is slightly more generous than the previous one to which the House agreed. I advise the Committee that it would be better now to proceed to the substantive discussion. In the light of what the Home Secretary says, the Committee will know how much of the time in the programme motion it wishes to devote to it.

Mark Fisher: On a different and short point of order, Sir Alan. Having agreed the programme motion, what procedure is available to the Committee to take advantage of the Opposition's offer of an extra day's debate? Is it only the Government who can table an amendment to the programme motion that we have passed? There seems to be a general feeling in the Committee that we are short of time to discuss such an important Bill and that an extra day given by the Opposition would be approved.

The Chairman: That is not a matter on which the Chair can adjudicate. I must deal with the fact that the House has agreed a programme motion, which sets the agenda for today. I advise that we proceed on those lines.

William Cash: On a point of order, Sir Alan

The Chairman: Order. I have been very liberal so far.

William Cash: Well, I have not had a point of order, Sir Alan, but my hon. Friend the Member for South Staffordshire (Sir Patrick Cormack) has had about five.

The Chairman: I must tell the hon. Member for Stone (Mr. Cash), in the best of humour, that I have heard many points of order from him in times past. If I do not hear one from him today, that will even the score slightly.
	I think that the Committee would now be wise to proceed.

Clause 1
	  
	Power to make control orders

Win Griffiths: I beg to move amendment No. 4, in page 1, line 3, leave out 'make' and insert
	'apply to the court for'.

The Chairman: With this it will be convenient to discuss the following:
	Amendment No. 180, in page 1, line 9, at end insert
	'(1A)   An application for a control order may be made with or without notice to the individual against whom it is proposed to be made.
	(1B)   On hearing an application for a control order, the court may
	(a)   grant the control order, with or without modifications;
	(b)   dismiss the application; or
	(c)   adjourn the application to a further hearing on notice to the individual concerned.
	(1C)   A control order shall provide a period for further review by the court unless the court is satisfied that the individual against whom it is made has had a full opportunity to contest the making of the order.'.
	Amendment No. 5, in page 1, line 11, after 'the', insert
	'court on the application of the'.
	Amendment No. 59, in page 1, line 11, leave out 'Secretary of State' and insert 'court'.
	Amendment No. 60, in page 1, line 13, leave out from first 'activity' to end of line 14.
	Amendment No. 6, in clause 2, page 3, line 23, after 'The', insert
	'court on the application of the'.
	Amendment No. 1, in clause 2, page 3, line 23, leave out 'make' and insert 'apply for'.
	Amendment No. 64, in clause 2, page 3, line 23, leave out 'make' and insert
	'apply to the court for'.
	Amendment No. 7, in clause 2, page 3, line 26, leave out 'he' and insert 'it'.
	Amendment No. 8, in clause 2, page 3, line 28, leave out 'he' and insert 'it'.
	Amendment No. 66, in clause 2, page 3, line 35, leave out from beginning to end of line 34 on page 4.
	Amendment No. 184, in clause 2, page 3, line 35, leave out subsections (2) to (7).
	Amendment No. 9, in clause 2, page 3, line 35, after 'the', insert
	'court on the application of the'.
	Amendment No. 2, in clause 2, page 3, line 35, leave out 'makes' and insert 'applies for'.
	Amendment No. 3, in clause 2, page 3, line 36, leave out from end of line to end of line 25 on page 4 and insert
	'(a)   the court must consider whether the matters relied on by the Secretary of State to justify applying for the order were capable (if not disproved) of constituting reasonable grounds for it to make an interim control order.
	(b)   in the event of the court making an interim control order it must give directions for the carrying out of a hearing of the court to consider making a control order.
	(c)   on a hearing by the court under subsection (2) (b) the court must conduct its own hearing of each of the matters that fell to be determined by the Secretary of State
	(i)   in making his decision to apply for the order; and
	(ii)   in making his decisions to apply for the obligations imposed by the order; and the court must make its own determination on the balance of probabilities on each of those matters.'.
	Amendment No. 10, in clause 2, page 3, line 37, leave out subparagraph (a) and insert
	'(a)   the controlled person may appeal within 14 days
	(i)   in England and Wales or in Northern Ireland to the Court of Appeal, or
	(ii)   in Scotland to the Inner House of the Court of Session;
	(aa)   the appeal must be considered within 7 days of the application; and'.
	Amendment No. 134, in clause 2, page 3, line 39, leave out from 'whether' to end of line 42 and insert
	'the Secretary of State has shown on the balance of probabilities
	(i)   that the person is an individual who is or has been involved in terrorism-related activity, there is a designated derogation within subsection (1) (c) and the obligation is within subsection (1)(d); and
	(ii)   that the imposition of the obligation is necessary for purposes connected with protecting members of the public from risks arising out of, or associated with, a particular public emergency.'.
	Amendment No. 164, in clause 2, page 3, line 44, leave out '7' and insert '3'.
	Amendment No. 136, in clause 2, page 3, line 45, at end insert
	'(3A)   The controlled person has a right to be heard on a reference under subsection (2)(a).'.
	Amendment No. 135, in clause 2, page 4, leave out lines 1 to 7 and insert
	'(a)   if not satisfied that the Secretary of State has proved the matters in subsection (2)(b)(i), must quash the order;
	(b)   if satisfied that the matters in subsection (2)(b)(i) have been proved but not satisfied that the matters in subsection (2)(b)(ii) have been proved, must quash the derogating obligation imposed by the order.'.
	Amendment No. 11, in clause 2, page 4, line 10, leave out 'by the court' and insert 'of the appeal'.
	Amendment No. 12, in clause 2, page 4, line 11, after second 'the', insert
	'court on the application of the'.
	Amendment No. 13, in clause 2, page 4, line 21, leave out 'Secretary of State' and insert 'court of first instance'.
	Amendment No. 137, in clause 2, page 4, line 22, at end insert
	'(e)   power to award damages to the controlled person.'.
	Amendment No. 139, in clause 2, page 4, line 22, at end insert
	'(e)   power to award to the controlled person their costs of the proceedings.'.
	Amendment No. 14, in clause 3, page 4, line 43, after 'The', insert
	'court on the application of the'.
	Amendment No. 70, in clause 3, page 4, line 43, leave out from 'The' to 'control' and insert
	'The court may renew a'.
	Amendment No. 185, in clause 3, page 4, line 43, leave out 'Secretary of State' and insert 'court'.
	Amendment No. 15, in clause 3, page 4, line 44, leave out 'he' and insert 'it'.
	Amendment No. 16, in clause 3, page 5, line 7, after first 'the', insert
	'court on the application of the'.
	Amendment No. 73, in clause 3, page 5, line 7, leave out 'Secretary of State' and insert 'court'.
	Amendment No. 17, in clause 4, page 5, line 19, after 'the', insert
	'court on the application of the'.
	Amendment No. 187, in clause 4, page 5, line 21, leave out 'make' and insert
	'apply to the court for'.
	Amendment No. 18, in clause 4, page 5, line 30, after second 'the', insert
	'court on the application of the'.
	Amendment No. 188, in clause 4, page 5, line 31, leave out 'impose' and insert 'apply for'.
	Amendment No. 20, in clause 4, page 5, line 33, after 'the', insert
	'court on the application of the'.
	Amendment No. 21, in clause 4, page 5, line 35, after 'the', insert
	'court on the application of the'.
	Amendment No. 23, in clause 4, page 6, line 4, after 'the', insert
	'court on the application of the'.
	Amendment No. 24, in clause 4, page 6, line 4, leave out 'of his'.
	Amendment No. 25, in clause 4, page 6, leave out lines 8 and 9.
	Amendment No. 193, in clause 5, page 6, line 15, leave out 'make' and insert 'apply for'.
	Amendment No. 26, in clause 5, page 6, line 16, leave out 'Secretary of State' and insert 'court'.
	Amendment No. 76, in clause 5, page 6, leave out line 19.
	Amendment No. 27, in clause 5, page 6, line 19, leave out 'Secretary of State' and insert 'court'.
	Amendment No. 77, in clause 5, page 6, line 20, leave out subsections (2) and (3) and insert
	'(2)   The Secretary of State may make an application to the court at any time to
	(a)   revoke a control order;
	(b)   relax or remove an obligation imposed by such an order;
	(c)   modify the obligations imposed by such an order.'.
	Amendment No. 28, in clause 5, page 6, line 20, after 'The', insert
	'court on the application of the'.
	Amendment No. 219, in clause 5, page 6, line 20, leave out from 'The' to end of line 21 and insert
	'court may on application by the Secretary of State'.
	Amendment No. 191, in clause 5, page 6, line 20, after 'State', insert 'or the court'.
	Amendment No. 29, in clause 5, page 6, line 27, leave out 'he' and insert 'it'.
	Amendment No. 30, in clause 5, page 6, line 30, after 'The', insert
	'court on the application of the'.
	Amendment No. 192, in clause 5, page 6, line 30, after 'State', insert 'or the court'.
	Amendment No. 31, in clause 5, page 6, line 33, leave out 'Secretary of State' and insert 'court'.
	Amendment No. 32, in clause 5, page 6, line 34, leave out 'of his'.
	Amendment No. 33, in clause 5, page 7, line 2, after 'the', insert
	'court on the application of the'.
	Amendment No. 224, in clause 5, page 7, line 7, leave out subsection (7).
	Amendment No. 34, in clause 5, page 7, line 7, after 'the', insert
	'court on the application of the'.
	Amendment No. 79, in clause 5, page 7, line 7, leave out 'Secretary of State' and insert 'court'.
	Amendment No. 194, in clause 5, page 7, line 7, after 'State', insert 'or the court'.
	Amendment No. 35, in clause 5, page 7, line 8, leave out 'he' and insert 'it'.
	Amendment No. 80, in clause 5, page 7, line 8, leave out 'he' and insert 'the Secretary of State'.
	Amendment No. 225, in clause 5, page 7, line 10, leave out subsection (8).
	Amendment No. 36, in clause 5, page 7, line 12, leave out 'Secretary of State' and insert 'court'.
	Amendment No. 37, in clause 7, page 8, line 40, leave out 'Secretary of State' and insert 'court'.
	Amendment No. 38, in clause 7, page 9, line 1, leave out 'Secretary of State' and insert 'court of first instance'.
	Amendment No. 39, in clause 7, page 9, line 13, leave out 'Secretary of State' and insert 'court of first instance'.
	Amendment No. 40, in clause 7, page 9, line 25, leave out 'Secretary of State' and insert 'court of first instance'.
	Amendment No. 41, in clause 7, page 9, line 27, leave out 'his decision' and insert
	'the decision of the court of first instance'.
	Amendment No. 42, in clause 7, page 9, line 32, leave out 'his decision' and insert
	'the decision of the court of first instance'.
	Amendment No. 43, in clause 7, page 9, line 37, leave out 'Secretary of State' and insert 'court of first instance'.
	Amendment No. 44, in clause 7, page 9, line 42, at end add
	'(10)   An appeal under this section shall be made
	(a)   in England and Wales or in Northern Ireland to the Court of Appeal, or
	(b)   in Scotland to the Inner House of the Court of Session.'.
	Amendment No. 45, in clause 8, page 10, line 1, leave out 'Secretary of State' and insert 'court of first instance'.
	Amendment No. 46, in clause 8, page 10, line 5, leave out
	'by the Secretary of State'
	and insert
	'of the court of first instance'.
	Amendment No. 47, in clause 8, page 10, line 8, leave out 'Secretary of State' and insert 'court of first instance'.
	Amendment No. 48, in clause 8, page 10, line 13, leave out 'Secretary of State's decision' and insert
	'decision of the court of first instance'.
	Amendment No. 49, in clause 8, page 10, line 16, leave out 'Secretary of State' and insert 'court of first instance'.
	Amendment No. 51, in clause 9, page 10, line 19, leave out subsection (1).
	Amendment No. 53, in clause 9, page 11, line 1, after 'the', insert
	'court on the application of the'.
	Amendment No. 87, in clause 9, page 11, line 1, leave out 'Secretary of State' and insert 'court'.
	Amendment No. 203, in clause 9, page 11, line 4, leave out paragraphs (b) and (c).
	Amendment No. 230, in clause 11, page 12, line 41, leave out
	'his exercise of the control order powers'
	and insert
	'the use of control orders'.
	Amendment No. 89, in clause 11, page 13, line 13, leave out
	'make, renew, modify and revoke'
	and insert
	'make application to the court for the making, renewing, modification and revoking of'.
	Amendment No. 216, in clause 12, page 13, leave out lines 37 to 46.
	Amendment No. 90, in clause 12, page 14, line 37, leave out subsection (3).
	New clause 1Special court in respect of control orders
	'(1)   There shall be a special court (the court) to be known as the Court of Terrorism Control.
	(2)   The Court shall consist of six members who shall be judges of the High Court of England and Wales or of the Court of Session or of the High Court of Northern Ireland and of whom three members shall constitute a quorum for the purpose of hearing an application.
	(3)   The court shall have power to make its own rules and to determine its own procedure.
	(4)   The functions of the court shall be to make control orders pursuant to section 1 of this Act.'.
	New clause 3Power of court to make determination
	'The powers of the court in making the determinations under sections 1 and 2 are confined to
	(a)   power to grant the application;
	(b)   power to refuse the application;
	(c)   power to refuse to make one or more obligations set out in the application.'.
	New clause 6Power to make control orders
	'(1)   An application for an order under this section may be made by the Secretary of State if he is satisfied that the following conditions are fulfilled with respect to any person, namely:
	(a)   that the person is or has been involved in terrorism-related activity;
	(b)   that, having regard to all the evidence that would be admissible in criminal proceedings, there is no realistic prospect for conviction of that person for any criminal offence relating to their involvement in such activity; and
	(c)   that such an order is necessary, for the purposes connected with protecting members of the public from the risk of terrorism, to make an order imposing obligations on the individual.
	(2)   The Secretary of State shall not make such an application without consulting the Director of Public Prosecutions.
	(3)   Such an application shall be made to:
	(a)   the High Court in England and Wales in respect of persons resident in England or Wales,
	(b)   the Outer House of the Court of Session in respect of persons resident in Scotland; and
	(c)   the High Court in Northern Ireland in respect of persons resident in Northern Ireland.
	(4)   If, on such an application, it is proved that the conditions set out in subsection 1(1) are fulfilled, the court may make an order under this section (a control order) imposing any of the obligations set out in subsection 1(8).
	(5)   For the purpose of determining whether the condition mentioned in subsection 1(a) above is fulfilled, the court shall disregard any act of the defendant which he shows was reasonable in the circumstances.
	(6)   In determining whether the condition mentioned in subsection (1)(a) is fulfilled, the court must apply the criminal standard of proof.
	(7)   The obligations that may be imposed on a defendant under this section are limited to the following:
	(a)   a prohibition or restriction on his possession or use of specified articles or substances;
	(b)   a restriction on his use of specified services or specified facilities, or on his carrying on specified activities;
	(c)   a restriction on his association or communications with specified persons or with other persons generally;
	(d)   a prohibition on his being at specified places or within a specified area at specified times or on specified days; and
	(e)   a requirement on him to report to a specified person at specified times and places.
	(8)   The court shall not impose any obligation under subsection (7) unless it is satisfied that the following conditions apply:
	(a)   that the obligation is necessary for the purposes connected with protecting members of the public from the risk of terrorism;
	(b)   that the same purposes could not be achieved by less restrictive means; and
	(c)   that the obligation is consistent with the defendant's Convention rights within the meaning of the Human Rights Act 1998 (c. 42).
	(9)   The Secretary of State or the defendant may apply to the court which made the control order for it to be varied or discharged by further order.
	(10)   For the purposes of this Act, involvement in terrorism-related activity is any one or more of the following:
	(a)   the commission, preparation or instigation of acts of terrorism;
	(b)   conduct which knowingly facilitates the commission, preparation or instigation of such acts, or which is intended to do so; and
	(c)   conduct which knowingly gives encouragement to the commission, preparation or instigation of such acts, or which is intended to do so.
	(11)   Evidence established to have been obtained under torture shall not be admitted in any proceedings.'.

Win Griffiths: I rise with some trepidation to support the amendment, the 47 others in the group and new clause 1, which all relate to decisions made by a court through the judicial process rather than by the Secretary of State as the person in the Executive arm of Government responsible for such matters. I am keeping in mind both the letter that has been distributed to us, as it is bound to have some bearing on the debate, and the fact that when we discussed these issues during the passage of the Anti-terrorism, Crime and Security Act 2001, I voted for procedures that have since been declared illegal. I feel, therefore, that I need to explainalthough not at lengthwhy I have come to a different opinion.
	In the appalling aftermath of the terrible twin towers incident in New York, there seemed a pressing and urgent need to do something significant to cope with what seemed an immediate danger. Some people may say that because nothing has happened in the United Kingdom over the past few years I am getting complacent, but that is not the case. I am moving the amendments in the context of the fact that it appears that our intelligence services are doing a good job in maintaining their monitoring of the potential terrorist threat. I wish them well and applaud all that they are doing in that regard. Obviously I do not want any form of terrorist activity in the UK to come to a terrible successful conclusion. However, I am also aware that the terrorist threat is no longer a one-off, but will be a significant experience for perhaps months or years. While the middle east remains a festering sore on the human political and social condition, there is a danger that the threat of terrorism will continue. In other words, it could be around for a long time. So issues relating to putting suspected terrorists under some form of house arrest imprisonment or other non-derogating actions to control the potential terrorist threat

Anne Campbell: Can my hon. Friend clarify whether his amendments would apply to non-derogating control orders as well as to derogating control orders?

Win Griffiths: I do not know whether I was fortunate or unfortunate in being the first Member called to speak, but my amendments cover both derogating and non- derogating control orders. It is important that the whole process be subject to a legal decision when the Secretary of State makes an application for action to be taken.

Douglas Hogg: rose

Simon Thomas: rose

Win Griffiths: I give way to my colleague from Wales.

Simon Thomas: Has the hon. Gentleman had the opportunity to read the letter from the Home Secretary on these matters? Does he feel that the letter answers the concerns set out in his amendment? My reading of the amendment is that it goes wider than the letter, which relates only to derogating orders. Will the amendment tackle the difficulty, admitted on Second Reading last week, that a combination of non-derogating control orders could amount to a deprivation of liberty and thereby become an issue that should go before the courts or invoke the need to derogate from the convention on human rights? Does he feel that the amendment overcomes the problems that I still have, as perhaps does he, with the letter from the Home Secretary?

Win Griffiths: On the basis of what is in the Home Secretary's letter, I am still waiting for an explanation and a filling out of exactly what is meant in terms of the non-derogating orders. My own position is that there should be a proper legal process in both cases because that would cover the point about some of the non-derogating issues, perhaps when put together, really being derogating ones.

Douglas Hogg: The hon. Gentleman has just made the point that there should be a proper legal process. Does he understand that he is only taking a small step by substituting the judge for the Home Secretary? The real problem is that even if the judge makes the decision, that is a not a proper legal process, because the detained person does not know the evidence, does not know the identity of the informer, is not properly represented, cannot see the evidence and cannot ask questions of counsel.

Win Griffiths: If the right hon. and learned Gentleman has read new clause 1, which I tabled, he may see in that perhaps an imperfect attempt to try to deal with some of the issues that he raises. In new clause 1, I propose the setting up of a court of terrorism control, where between three and six judges could meet to consider what the Home Secretary has said and decide exactly how to proceed in handling the evidence. I admit that I am a layman, not a lawyer, but I believe that that would give the court the opportunity to decide how to handle the evidence and whether it needed the clarifications to which the right hon. and learned Gentleman refers. I will come back to that later on.

David Winnick: As someone who broadly supports what the Government intend to do, does my hon. Friend agree that although the Home Secretary has undoubtedly made a move in view of the concern expressed last week so far as derogating orders are concernedthey will have to be initiated by a judge, which is certainly a step forwardit is unfortunate, however, that there has been no progress at all on non-derogating control orders, which relate to issues other than house arrest, as he knows, such as tagging and the rest of it? The Home Secretary's letter simply says that the person involved can apply very quickly to the courts. Surely a person should be subject to a control order only as a result of court action. That is a very important point. Does my hon. Friend not agree?

Win Griffiths: My hon. Friend will be aware that I am speaking now because amendment No. 4 deals with that very point. I look forward to an expansion in what the Home Secretary has to say about the matter. Given that he has already conceded that on derogating orders the judge's role should be primary, perhaps there is room for the debate to develop on that point in a similar fashion.

Patrick Cormack: In view of the fact that the Home Secretary has indicated that he would be happy to speak at an early stage, and as we are in Committee and the hon. Gentleman can take part in the debate again, would it not be a good idea if we heard from the Home Secretary very soon?

Win Griffiths: That is a very good idea, and I am bearing it in mind. Of course, hon. Members have made a couple of interventions on my speech, which has slowed me down, but in the light of the letter and the conversations that I have had this morning on some of these issues, I certainly do not intend to make the speech that I was planning last nightalthough I believe that it is necessary at least to refer to some of those matters before I sit down.
	The first issue is the House of Lords judgment that, of course, precipitated the need for this debate and these changes in the law. The one simple point that I want to make about that judgment is that it has two significant parts, the first of which relates to the discrimination between nationals and non-nationals in the United Kingdom, and the second of which is that the Law Lords felt that the response was not proportionate to the threat that we face from terrorism. Of course, we could debate that at some length, but I feel that, all in all, the decision not to use the courts in the first place was wrong. Therefore, the Law Lords were right to say that the provision to set aside the courts as the first place to take such matters was disproportionate. That is why I tabled the amendment.
	Since then, we had over the weekend the report from the Joint Committee on Human Rights. It makes some clear recommendations. Without mentioning each one in detail, I wish to refer to paragraphs 11, 12 and 13 that refer, in particular, to the
	lack of prior judicial involvement in orders depriving of liberty.
	They make it absolutely clear and without any doubt whatever that the law as we have it and as it is proposed under the Bill contravene

William Cash: Will the hon. Gentleman give way?

Win Griffiths: I was just about to point out that the law both as it is and as it is proposed contravenes the European convention on human rights. I know that the hon. Gentleman is very keen to uphold that.

William Cash: The hon. Gentleman refers to the report of the Joint Committee on Human Rights that, understandably from its point of view, would enhance and entrench the role of the Human Rights Act 1998. However, does he know that Lord Hoffmann, in a postscript to the Rehman case, made the position clear only a couple of years ago? He said:
	It is not only that the executive has access to special information and expertise in these matters. It is also that such decisions, with serious potential results for the community, require a legitimacy which can be conferred only by entrusting them to persons responsible to the community through the democratic process.
	He then adds that those persons are those
	whom the people have elected and whom they can remove.
	In other words, Lord Hoffmann clearly contradicts the basis upon which the Joint Committee is proceeding.

Win Griffiths: The hon. Gentleman points to only one case in which there is a difference of opinion. I would have thought that the Law Lords and the Joint Committeewhich, I believe, is a parliamentary Committeehave made judgments with which Lord Hoffmann could be happy. The Joint Committee has made it very clear that the derogating orders that would deprive people of their liberty disregard the convention and our own law. Therefore, they would be illegal.
	On the limited judicial control of the non-derogating control orders, the Joint Committee has a less strident opinion. Nevertheless, it flags up a sufficient warning that it believes that, even under the non-derogating orders, there would be a case to be taken and the Government would be likely to be found to be acting illegally under our legislation with regard to the European convention on human rights. That is why I hope that later in the debate, it will become clear how the Secretary of State will handle the derogating and non-derogating orders. I hope that in both cases, there is sufficient clarity that primary decisions will lie with the courts.
	Before I conclude, I want to refer briefly to new clause 1, which, in a sense, is a probing effort to try to consider how we can handle the issue of the sensitive material that has been gathered and has led the Secretary of State to believe that someone should be deprived of his liberty in an extreme case, or have some sort of control order placed upon him. There should be some way in which a suspect's case could be properly considered and he should have the opportunity to mount a defence.
	One of the significant things that we must bear in mind was referred to by an article in The Guardian this morningI hope that my right hon. Friend the Secretary of State will not see that as a weakness in my argument. The article was written by Clare Dyer, the newspaper's legal correspondent. She pointed out that the Tipton three, who were held at Guantanamo Bay and released without charge after two years, were detained because the Americans believed that they had a video showing them with Osama bin Laden in 2000. However, if the three men had known that at an early stage, they would have been able to prove that one of them was working in an electrical store in the United Kingdom at the time and the other two were in trouble with the police. The situation could thus have been cleared up quickly.
	There must be a process by which evidence can be considered and suspects can have the opportunity to clear their names. I envisage a court of terrorism control with between three and six judges who could consider evidence and decide, on their own initiative, the procedures that would be needed to allow the suspects to defend themselves. They could then decide whether the application made by the Secretary of State was correct.
	As the Bill stands, the Secretary of State will be the prosecutor, judge and jury in the first instance for both types of order. We already know that thanks to the pressure from the House of Commons, the Home Secretary is now minded to make it absolutely clear that a judge will make decisions in cases when people would be deprived of liberty, and that there will be a different and stronger procedure for non-derogating ordersalthough as a layman, I am not entirely clear about how that would work. When the Secretary of State speaks, it would be helpful if he would let me know that judges will have a primary role with regard to both types of order, because I would then be able to withdraw my amendment. I am currently waiting in hopeful expectation that he will be able to agree in principle with the points made in my amendments to clause 1 and in new clause 1.

Charles Clarke: May I first apologise to hon. Members and you, Sir Michael, if I erred by writing to the party leaders and putting the letter in the Library of the House? I took that course of action for a simple reason: I felt that I had reached a set of preliminary conclusions following the views expressed in the House last week and subsequent conversations. I thought that it would help today's discussion if I tried to set out clearly where we were, rather than not revealing that until a later stage of the debate. If I have created confusion and caused a problem with the consideration of the Bill, I apologise to the Committee and you, Sir Michael.

Kenneth Clarke: I thank the Home Secretary for his apology. The letter seems to imply that he has decided clearly how he wishes to amend the Bill, but the obvious complaint is that he has decided not to put the relevant amendments before the Committee for discussion today. Of course they will need drafting, but I cannot imagine that that would take days and days with a little late-night work. Will he explain why he has not put the amendments before the Committee? Why could he not do so this evening, if we were prepared to continue after 10 pm? Why could we not consider them on Wednesday, because if the official Opposition were prepared to give up their Supply day, the Leader of the House could make the necessary business statement to allow us to do that. Given the complexity of the matter, it is unsatisfactory for the Home Secretary to outline what he has decided to dothe parliamentary draftsman have probably already drafted the measuresyet for us not to be able to read the amendments so that we can have a serious, sensible and   detailed discussion about them of the kind that should take place in the Committee, if it is to have a scrutinising function.

Charles Clarke: There are two reasons why I have taken the course of action that I have taken. The first is that I finally resolved this morning what to write in the letter, which is why it came over to the House at about half-past 12. It is a preliminary set of conclusions, which I thought I should make available before we discussed the situation further. The fact is that we do not have the detailed amendments in draft to put before the Committee today, and they will not be available today.
	The second reason is that I want, and I think the Committee should want, to hear the debate that we are about to have so that we are clear about the place from which a wide range of Members argue their particular points of view. That is why I have taken this course of action. As I said, the alternative open to me was to say nothing other than at the end of the discussion on the various groups of amendments. I thought that that would not be the right way to proceed.

Several hon. Members: rose

Charles Clarke: I shall give way, but I want to deal with the substance of the comments made by my hon. Friend the Member for Bridgend (Mr. Griffiths).

Douglas Hogg: Does the right hon. Gentleman understand the problem? If, as appears to be the case, he tables the amendments in the other place, the House will have barely any opportunity to consider the detail because they will come back for discussion under a tight timetable motion. The truth is that hon. Members will never have the opportunity properly to discuss the amendments that will lie at the heart of the new Bill.

Charles Clarke: I understand that, but it is also the case, as the right hon. and learned Gentleman acknowledged, that the other place will have the chance to discuss those amendments in great detail and that this House will then have the opportunity to consider them.

Richard Shepherd: As I understand it, the other place will consider the Bill tomorrow. That means that the Home Secretary's proposed amendments must be in an advanced stage of drafting. He has had Wednesday offered for an extension of the debate. If he reflects on the primacy of this Chamber, surely he can accede to us the right to discuss that which will go before the Lords by utilising the Opposition time now made available. That really would be helpful and perhaps ease the Bill's passage.

Charles Clarke: I am always an optimist, but the process set outthe timetable that has been agreedis the right way to proceed.

Martin Salter: While much that is in the Home Secretary's letter to his opposite number is to be welcomed, especially his commitment to put the issue of effective house arrest before a judge, does he recognise that his failure to accept the amendments tabled by my right hon. Friend the Member for Livingston (Mr. Cook) and others puts many Labour Members in a difficult position, because we are extremely reluctant to vote for an unamended Bill?

Charles Clarke: I shall address the points of substance raised by my hon. Friend the Member for Bridgend in a second, and I think that will address the concern expressed by my hon. Friend the Member for Reading, West (Mr. Salter).

Edward Garnier: The procedure is important because it is the only instrument by which the Opposition can debate a Bill. By advancing in a letter an amendment that is not part of the marshalled amendments and was not taken into account when the six-hour limit was set, the Home Secretary places the Committee in a difficult position. I do not deny him the good motive that he wants the House of Commons to know what he is thinking, but what he is thinking and writing about is not before the Committee as part of the Bill or the amendments. It is just a piece of paper that contains his thoughts. We in the Oppositionwhat he does in the Government, only he can speak forcan only discuss what is in the Bill and what has been chosen to be discussed on the marshalled list of amendments.
	We have six hours in which to discuss a page and a half of amendments on the selection list. The amendment set out in the letter is the latest addition, but it is unofficial. Of course, we listen to the Home Secretary with the greatest of carehe is a Secretary of Statebut we are supposed to take it on good faith that he will give us adequate time when the Bill returns from the House of Lords. The history of the Government suggests that we will get one, two or three hours maximum to discuss Lords amendments. If he thinks that that is adequate and a proper way to discuss the Bill, I am afraid that he will lose our support.

Kevin McNamara: Will my right hon. Friend give way?

Michael Lord: Order. The hon. Gentleman cannot intervene on an intervention. The Secretary of State must at least respond to the first intervention.

Charles Clarke: I will give way and then respond to both interventions.

Kevin McNamara: Is not the nub of the matter what appears in the top paragraph of page 2 of the letter, which says:
	(with a special advocate representing the interests of the subject of the order in closed sessions)?
	In other words, the subject of the order will not know the evidence against them and will not have a proper opportunity to rebut it. Therefore, whatever tinkering there might be with the role of the judge, there is no real protection for the individual who is imprisoned.

Charles Clarke: That intervention helps me to make progress on putting the substance of what I will suggest before the Committee for hon. Members to consider.
	After my apology to hon. Members, I wanted to acknowledge the importance that my hon. Friend the Member for Bridgend gave to the 9/11 events and what we are dealing with, and he was right to do so. Only today we have had the case of Saajid Badat, who has admitted plotting to blow up a plane and who the intelligence services believe was in league with Richard Reidboth, by the way, British citizens. That proves two things.

Simon Hughes: They were in court.

Charles Clarke: Precisely; that is my point. First, there is a real threat with which we have to deal, and we must never forget that point in all our discussion. Secondly, the preferred route of this Government, as with previous Governments, is that of prosecution and the courts in precisely the way indicated. That is the route that we will choose. As I shall go on to say, we seek to strengthen in the legislation the commitment to go down the prosecution route, for the reason argued by Members throughout the House.

Crispin Blunt: Will the Home Secretary give way?

Charles Clarke: No, I shall make a bit of progress before I give way again.
	On Second Reading, I undertook to look carefully at the cases that had been made to achieve judicial involvement in the order-making process at the earliest possible stage, in line with the considerations put forward by many in the House. I stated that my first consideration would be the security of the nation, and I retain the view that the proposals in the Bill are the best ones. I am strengthened in that view by some senior judicial opinion. I cite, for example, Lord Donaldsona former Master of the Rolls and one of the highest people in the country on the civil side of the lawwho said on the radio this morning:
	I don't agree with the idea of involving the judges at the initial stage. It's never been the case. It would involve them forming a view and expressing a view as to the correctness of the order before they'd even heard the person who was affected by it. Furthermore, there would be a change in people's perception of what a judge was.
	He concluded:
	A judge is the referee or umpire; he's not a player.
	I state that to indicate that there are serious and senior judges in this country who are of the view that it would be better to remain as we are proposing in the Bill rather than to make the changes that I propose. I nevertheless take the view that it is right to make the changes that I suggest for reasons which I shall state.

Dominic Grieve: That is not the interpretation that I put on Lord Donaldson's words. On the contrary, the interpretation that I place on them is that, as we said on Second Reading, the judiciary would be most reluctant to be sullied with a process involving them that falls short of proper judicial procedure. The ball is in the Government's court to provide a process that comes as close to proper judicial procedure as possible. It is possible to do that if the Home Secretary allows for a proper procedure under which the judge can hear the other side before determining any order.

Charles Clarke: I was not seeking to interpret Lord Donaldson; I was quoting him exactlyI used his precise words. The hon. Gentleman does not understand the critical point, which must be understood, that the Bill covers territory in which we cannot prosecute successfully, and that some people threaten the security of the country through terrorism. That is the territory, and I share the view, which is held on both sides of the House, that we should minimise the number of people who are in it.
	That is why I say, let us strengthen the paths to prosecution, and that is also why I say, let us bring cases through the courtsearlier, I mentioned the case of Mr. Badatwhere we can do so. However, I also assert that we are not in that position in a very small number of cases, where the issue is whether we simply allow such people to operate unchallenged or whether we challenge them. Lord Donaldson is saying that judges are not best involved in that small area, which is his argument, not mine.

Dominic Grieve: Is not the key issue, on which we touched on Second Reading, why the Home Secretary finds it necessary to take a power where he can be woken at 2 am to direct immediately that a person should be subject to a control order, when, as we have discussed before, if the police believe that a person poses an imminent threat, they already have 14-day detention powers under terrorism legislation, which is ample time in which to bring an inter partes hearing before a judge to determine whether an order should be made?

Charles Clarke: I accept that point, which is why I have set out the proposals for change in my letter. I believe it desirable that we achieve a position in which legislation on the statute book is supported by as broad a range of opinion in this House as we can possibly achieve. I cited Lord Donaldson, who, I believe, is not the only senior judge to take that view, because we are making a change that the judges themselves may not believe to be the best course of action from their point of view.

Crispin Blunt: The Home Secretary has just said that he needs to deal with very few people, which gives the game away on the need to push through the powers with such haste. In his letter to my right hon. Friend the Member for Haltemprice and Howden (David Davis), he said:
	There is a further area where I have been persuaded by the debates in the House that some amendment is needed,
	and he has gone on at some length about his interpretation of Lord Donaldson's words. Given the huge controversy that surrounds the implications of what he is doing, he needs consensus and support, but the way in which he is handling the matter is ensuring that he gets as little consensus and support as possible. He should urgently review how he is dealing with the matter in the Committee.

Charles Clarke: The hon. Gentleman has made it clear at every stage that he is against any form of control orders, which he does not believe to be right. In the small area that I described, he concludes that the best thingI accept his integrity and honour in putting this view forwardwould be to do nothing. He is entitled to that view, but I cannot accept it.

Peter Lilley: The Home Secretary has said that these measures, which we all find distasteful, will apply only to a small number of people, but earlier today the Prime Minister said that in the view of the security services there are several hundred people for whom these powers are necessary. Who should we believe?

Charles Clarke: The Prime Minister was referring to the 700 cases, I think, where action has been taken which has already been reported. There are a large number of people who, we think, pose a threat to what we believe. However, a significant number of those can be dealt with through the prosecution route, which is the route that we prefer to follow.

John Bercow: Given the detailed contents of the right hon. Gentleman's letter to my right hon. Friend the Member for Haltemprice and Howden (David Davis), nothing that he has said this afternoon explains why he cannot table Government amendments for the Committee to consider this week. In view of the fact that the Home Secretary must have heard the expressions of grave concern in all parts of the House about the way in which he has handled the matter during the consideration of the programme motion, did he not think it a good idea to have a word with his right hon. Friend the Chief Whip or with the Leader of the House or both, with a view to saying to the Committee, Yes, we accept the Opposition's suggestion. Let there be an additional day for debate. Let that day be Wednesday. What is so difficult about the Home Secretary swallowing a little bit of humble pie?

Charles Clarke: We have dealt with all those points at some length. The whole point about the Conservative Opposition is that there is no Opposition proposal. There is no clarity whatever. We have a shifting position, sands moving the whole time, about control orders or not.

Robin Cook: As the Member who had the privilege this morning of taking part in the debate with Lord Donaldson, I am not sure that I find Lord Donaldson's views any more persuasive at 5 o'clock in the afternoon than they were at 9 o'clock in the morning. I particularly remain unpersuaded of his argument that the Attorney-General would be an adequate check and balance on the way in which the Government carried out the powers. I fully take my right hon. Friend's point that a number of judges will be very unhappy about the idea of the deprivation of liberty of the citizen without charge, without conviction and without trial. However, if that is the course that we are to takeit is in his Billto many of us a sticking point is that the decision on that should be taken by the courts, not by the Government.

Charles Clarke: I agree with my right hon. Friend. That enables me to move on to the main point that I wished to make, and I am grateful to him for allowing me to do so.

Lynne Jones: Will my right hon. Friend give way?

Charles Clarke: No, I shall go on to the point that I wished to make, which is that despite the view that I have just expressed of my concern about the position of judges, I have come to the view that there is great merit in seeking as wide a consensus as is possible across Parliament. That is why I have come to the conclusion that I should move in this area in precisely the direction suggested by my right hon. Friend the Member for Livingston (Mr. Cook) not only today but on Second Reading. I take the opportunity to pay tribute to the way in which the arguments on the matter have been made, both by him and by many of my hon. Friends, who have sought in a perfectly proper way to make the case that he summarised a moment agothat decisions on deprivation of liberty are best taken by judges, not by other people.
	However, when considering the balance of these mattersand it is a matter of balanceI came to the conclusion that I set out in the letter today. I propose to amend the Bill to provide for derogating control orders to be made by a judge in the High Court, rather than as now by the Secretary of State. That is a change of position and I have made it for the reasons that I have given.

Dominic Grieve: rose

Charles Clarke: I have sought to acknowledge the strength of opinion that exists in all parts of the House. I shall go on to say three other things that I have also concluded, but before doing that I give way to the hon. Member for Beaconsfield (Mr. Grieve).

Dominic Grieve: The Home Secretary suggests that the official Opposition have not indicated their position, so I repeat it. First, the orders must be made by the judiciary, not by the ExecutiveI shall come back to that in a moment. Secondly, the Home Secretary will have to justify before the House each and every aspect of the control orders that he seeks. If he can persuade us that each and every one of them is required, he will have our support, but the difficulty is that his past utterances have not suggested to us that some of the control orders are justified at all. Why, if the right hon. Gentleman accepts the principle of the judiciary dealing with orders where there is a derogation, should he not apply it also to those where he believes he does not have to derogate, given that many of them as they appear in the Bill are substantial infringements of the liberty of the individual?

Charles Clarke: I will come to the hon. Gentleman's final important point, which has also been raised by others, when I set out the four points that I intend to deal with.

Chris Smith: Can my right hon. Friend give us a very clear assurance that as regards the prima facie consideration by the judge that he intends in relation to the derogating orders and the subsequent referral to the full court, the judge and the court will on both occasions be able to look at the facts of the case and to consider all the information that he has had at his disposal, and will not simply be looking at process?

Charles Clarke: I can give that absolute assurance. That is very important. The meaning of the criticism that was made of me by several hon. Members during the Second Reading debate last Thursday was precisely that a court might be able only to look at the processes, not the substance

Several hon. Members: rose

Charles Clarke: I will not give way until I have finished my sentence. It is not unreasonable for me to try to finish my sentence before giving way.
	The point that I was seeking to make is that many Members criticised my proposal on the grounds that it did not give, as they originally thought, the basis for the court to consider the whole situation, as my right hon. Friend the Member for Islington, South and Finsbury (Mr. Smith) suggested. I have accepted that criticism in the case of derogating cases, and that is the basis of what I have put forward. In a second, if I am given the time, I will deal with the points made by my right hon. Friend and set out the procedure that will be followed.

Michael Weir: Will the Home Secretary please clarify something? In his letter he talks about an application to the High Court, which is not defined in the Bill, although a court is defined. Can he confirm that in Scotland the high court will be the Court of Sessions?

Charles Clarke: I can confirm that.

David Winnick: Since I happen to believe that there is an acute terrorist threat to this country, I am going to support control orders, as I did last week. I do not believe that the Government have some hidden agenda to undermine civil liberties. However, as my right hon. Friend has, rightly, gone as far as he has on house arrest, why does he not go further, as the hon. Member for Beaconsfield (Mr. Grieve) suggested, to get court intervention on control orders, not simply my right hon. Friend's intervention in the first instance? Surely he can go further than he already has.

Charles Clarke: I will come to that argument in a second, if I may.

Jeremy Corbyn: In response to my right hon. Friend the Member for Islington, South and Finsbury (Chris Smith), the Home Secretary said that the judge and the court would have access to all the information under which the orders had been sought. What information would be made available to the defendant in that process?

Charles Clarke: At the point of the full hearing, there would be what is known as an inter partes hearing, where all sides have access to the information via the special advocacy procedure that has been established to deal with the security issues.

Dominic Grieve: Further to that point, I read paragraph 4(3)(c) of the schedule as indicating that the Home Secretary can pick and choose what evidence he puts before the judge, not before the defendant, when the matter comes to an inter partes hearing. If so, that is not compatible with the answer that he gave a short time ago in response to the intervention on whether the judge would be able to consider all the evidence in the case. That point requires clarification.

Charles Clarke: My hon. Friend the Minister for Crime Reduction, Policing and Community Safety will do that later on. However, I can say in summary that it is not our intention to allow the Secretary of State not to disclose exculpatory material to the controlled person or the special advocate. Our intention in the paragraph to which the hon. Gentleman refers is to replicate the substance of the SIAC procedure, so that the court directs the Secretary of State to serve closed material that is sensitive and where there could be vulnerability to the suspect. After the Secretary of State's objection has been heard in closed session, the Secretary of State is able to withdraw that evidence, and if he does so he is not required to disclose it. The Security Service already has the practice of disclosing any exculpatory material, and that will continue.
	To be clear, we would be happy to reconsider the wording of paragraph 4(3)(c) with a view to improving it.

Mark Oaten: rose

Charles Clarke: I will give way to the hon. Gentleman, then I shall try to explain the procedure before having too much discussion on it beforehand.

Mark Oaten: In case people are confused, will the Home Secretary confirm that while the special advocate may be able to see the evidence, they are not allowed to show it to the defendant?

Charles Clarke: If it is in the closed session, the hon. Gentleman is right, because of the national security issue involved. For some, that means that no such procedure can be acceptable and that, effectively therefore, according to the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg), no control regime can exist.

Douglas Hogg: Absolutely.

Charles Clarke: The right hon. and learned Gentleman says, Absolutely, thus confirming that, whatever Opposition Front Benchers say, senior and respected Conservative Back Benchers believe that there should be no control order regime at all.
	I shall set out precisely what the new procedure

Lynne Jones: Will my right hon. Friend give way?

Charles Clarke: Not at this stageI will do so later.

Edward Garnier: On a point of order, Sir Michael. I apologise to the Committee and to the Home Secretary for interrupting him while he is trying to explain something. However, the longer his speech goes on, the more unsatisfactory the process is revealed to be. We are trying to discuss a huge infringement of the liberty of the individual, on the back of a letter and without any of the amendments or rules of procedure that the Home Secretary seeks to explain. I congratulate him on wanting to explain, but what are the procedures of the House for? That is not just a boring lawyer's point. How can those procedures be properly protected when the Home Secretary can destroy the whole purpose of the Committee stage by coming to the Chamber with a letter to the shadow Home Secretary and making a speech that is wholly unconnected with the fabric of the Bill as presented by the Government? We are being expected to swallow that hook, line and sinker. Surely some control should be placed on a Secretary of State and Government who ride roughshod over the House's proper discussion procedures.

The Second Deputy Chairman: The programme motion has been decided. There is nothing more we can do at this stage other than consider the amendments that are before the Committee, which is what we are doing.

Edward Garnier: rose

The Second Deputy Chairman: Order. I have dealt with the point of order. We should now proceed and let the Home Secretary explain.

Charles Clarke: rose

Lynne Jones: Will my right hon. Friend give way?

Charles Clarke: I will give way and then say what I was going to say.

Lynne Jones: Why is my right hon. Friend not prepared to put the making of non-derogating control orders in the hands of the court or to allow the court to consider the facts of such cases rather than just the procedure?

Charles Clarke: As I think I have said about four times already, I will come to that point when I am allowed to make some progress.
	The new procedure for derogating control orders will beI will propose this for consideration in the other placethat the Secretary of State would make an ex parte application to the High Court for an order and that the application would be heard by a judge as quickly as possible.

Richard Shepherd: On a point of order, Sir Michael. I raise this with the greatest reluctance. The Home Secretary is taking us into territories that none of us can read either in the Bill or in any amendment. How can he be in order when he is going off on that line of attack?

The Second Deputy Chairman: The Home Secretary is speaking to the amendment and the group. The Committee should now allow him the time to explain what he is seeking to explain and then take a view on his explanation.

Charles Clarke: I am grateful, Sir Michael. I am of course entirely happy not to try to describe the procedure that I will set out, but to be quite candid, it would be better if I did try to do so.

Andrew MacKinlay: Well if you want my vote, you had better explain; otherwisedream on.

Charles Clarke: I thank my hon. Friend for that.
	The new procedure for derogating control orders that I shall suggest is as follows. First, the Secretary of State would make an ex parte application to the High Court for an order. Secondly, the application would be heard by the judge as quickly as possiblesay, within 24 to 48 hours. The judge would look at all the material on which the application was based and decide whether there was a prima facie case. If so, he or she would make the order. The order would be subject to automatic referral to the full court for an inter partes hearing, with a special advocate representing the interests of the subject of the order in closed sessions, as currently provided in the Bill. The order could be renewed on application by the Secretary of State following a further inter partes hearing. That is the procedure that would give effect to the assurance that I gave earlier on a process that would meet the need seen by the Committee for a judicial decision to be the first point of call on these matters.
	In response to a point made on Second Reading by the hon. Member for Winchester (Mr. Oaten), I then set out the procedure necessary to deal with an emergency in which we need to prevent the subject of an application from disappearing in the period between the Secretary of State making the application and the order being served.

Robert Marshall-Andrews: A prima facie case of what?

Charles Clarke: A prima facie case that an order ought to be served on an individual on the basis of the terrorist threat that that individual posed. The point is that it would be for the judge to make that assessment on the basis of an application from the Home Secretary.

Malcolm Bruce: Given the difficulties that the Home Secretary has had with special advocates under the present regime, and given that the Prime Minister says that these provisions could affect several hundred people, is the Home Secretary satisfied that there will be enough qualified lawyers willing to take on the role of special advocate in the circumstances that he is outlining?

Charles Clarke: First, I am certain that that will be the case. Secondly, the Prime Minister did not make the assertion that the hon. Gentleman suggests.

Patrick Cormack: Will the Home Secretary not at least concede that this is an extremely unsatisfactory way in which to proceed with the Bill? Why can he not, even at this late stage, table amendments that this House, the elected House of Commons, could discuss on Wednesday? He could have had his Bill debated with good will and in good order, within the Government's own allotted time, if only he had given us a little more time and treated the House with a little more courtesy. I am sure that it is not his intention to be contemptuous of the House, but that is the effect of the way in which he is proceeding. Will he not concede that?

Charles Clarke: As I have said on a number of occasions, it would have been more discourteous to the House not to have shared my intentions and thoughts with it at the earliest possible moment. To have had a discussion without sharing them would have resulted in a worse state of affairs.
	The change that I have just outlined is the first, and most important, of the three changes that I intend to suggest. The second deals with the question

Kenneth Clarke: I thank the Home Secretary for giving way. My question is relevant to the procedure. He has described the process in which a Home Secretary or his representatives would go before a judge and seek an order in relation to a prima facie case. Will he make it clear whether, in seeking such an order, it would be sufficient for the judge to be satisfied that there were reasonable grounds for suspicion that the person posed a threat to public safety, or would he have to be satisfied that there was an imminent threat to security that justified depriving that person of his liberty? Will a judge considering an application for such an order have as full a hearing as he is ever going to be allowed to have? Will he be able to see all the material on which the Home Secretary and the Security Service are basing their application, and will he have the opportunity to challenge it or to listen to an advocate challenging it? Will the Home Secretary give the Committee a fuller explanation of what is to happen at that preliminary stage of an application for a prima facie order? He might simply be introducing a rather routine procedure before going back to what he proposed in the first place.

Charles Clarke: The first thing to emphasise is that my proposal will be that there be a full hearing at the stage after the prima facie stage. At that full hearing, which will be intra partes, it will be both possible and the reality that the judge will be able to look at all the evidence, either in closed session or open session, and that there will be a position in which the advocates of both sides will be able to make their points in court in that way.
	Opposition Members have raised questions about the detained person. That point has been well covered before in this discussion. It remains my strong view that the special advocate process in these arrangements in front of the High Court is an appropriate procedure to follow in those circumstances.

Kenneth Clarke: Am I to understand that at the prima facie stage there will be no hearing? At that stage, will the judge have the material that is being relied on, and will the judge have to be satisfied that a threat exists, or merely satisfied that there are grounds for suspicion?

Charles Clarke: First, all the papers will be available at the prima facie stage. Secondly, the hearing will be ex parte rather than intra partes: that is, not all sides will be able to be there. Thirdly, the judge will have to be satisfied on the balance of probabilities that the individual concerned is a threat to the country.

Douglas Hogg: The right hon. Gentleman talks of inter partes hearings, but I think he also concedes that the detained person will not be told the names of his accusers, will not be shown the nature of the evidence, will not see the documents, and will not have an opportunity to question any of his accusers. What is more, the judge may not have an opportunity to put any relevant questions to the detained person. Have I understood the position correctly?

Charles Clarke: The right hon. and learned Gentleman has understood correctly that the detained person will be represented by a special advocate in those circumstances, and it will be the special advocate who can interrogate on the issues before the court. I know that for the right hon. and learned Gentleman this is a disqualifying position. If the defendant himself cannot take instructions, from his point of view no control order should operate. He believes there should be no such legal process in such circumstances: his position is clear. Given the balance between security and liberty, he and I differ on how we should proceed.
	There is an argument to be had, and the right hon. and learned Gentleman will vote accordingly. I believe, and I think the country generally believes, that when there is a reasonable belief that an individual will commit a terrorist act and that we can prevent that from happening, we should do so. That is not the right hon. and learned Gentleman's position, but it is mine.

Menzies Campbell: The Home Secretary can only have agreed to make what some of us regard as concessions in relation to derogating orders because he accepts the principle urged on him by Members on all sides that in matters of deprivation of liberty, a judge should be responsible for making the decision that has that effect. If he accepts that principle in relation to derogating orders, why should he not accept it in relation to non-derogating orders?

Charles Clarke: I am coming to that. I find myself in some difficulty: I am trying to give way as much as possible while also making progress. I think I will act on that stimulus, and make my next three points about changes in the position before responding in detail to the question asked by the right hon. and learned Gentleman.
	I set out in the letter, and now set out for the Committee's benefit, three respects in which we intend to change the procedures for non-derogating control orders in what I consider to be a significant and substantial way. First, we propose that when an appeal is made against a non-derogating order by an individual who wishes to do so, a limit should be set on the time before which it can go to a judge. The criticism has been made that if there were no time limit, no judicial review could take place effectively and definitely. I am saying that we should make the first concession in this context, and provide for a time limit. That is important from the point of view of those who fear that people under non-derogating orders may never have their case heard by a judgeand, incidentally, it refutes the view of those who say that there is no proper legal process in this regard.

John Denham: Will my right hon. Friend give way?

Charles Clarke: I will in a secondto my right hon. Friend in particular.
	The second issue relates to prosecutions. Let me repeat that, as a matter of practice as well as of policy, prosecution should remain our first option, and the prospect of bringing such a prosecution should remain under review even when a control order has been imposed. I am exploring with the police and the Crown Prosecution Service how we might best include that in the Bill. I intend to place an obligation on the policein consultation with the prosecution authorities when that is appropriateto keep under review the prospect of a prosecution in respect of any individual who is made subject to a control order.
	My officials are working on those points now, so that the necessary amendments can be made to the Bill at Committee stage in the Lords. In making this proposal, I am particularly conscious of the argument advanced by my right hon. Friend the Member for Southampton, Itchen (Mr. Denham) and by my hon. and learned Friend the Member for Redcar (Vera Baird), who have argued strongly for the prosecution case to be there throughout

John Denham: I hope that we will be able to explore the latter point if we ever get to that part of the Bill, but I wonder whether my right hon. Friend can pick up one small but important point. He talked about a time limit for referral to judicial review on the non-derogating orders. Whatever the other arguments, is he able to say what he has in mind for that time limit? Would it be, say, 14 days, for example?

Charles Clarke: Fourteen days may well be a reasonable time scale. One is thinking about a 14 to 28-day period. It is of that order. It requires a little more discussion with the CPS authorities and so on, but it is that kind of time scale that we are describing.

Simon Thomas: On a point of order, Sir Michael. We have just heard the Home Secretary say, I thought quite categorically, that there would be a time scale for the referrals for judicial review. In fact, following an intervention, he suggested that 14 days would be reasonable. However, in the letter that has been produced for the Committee this afternoon, he says that he will be
	looking closely at whether it would be possible to provide in the Rules which will govern the courts' proceedings in these cases for any such appeals to be heard within a set timescale. My conclusions will be reported to the Lords . . . and, if necessary, amendments laid at that stage.
	That underlines how ridiculous it is trying to deal with this process. Is it in order that we have one thing written and another thing said and no amendments to debate?

The Second Deputy Chairman: The point that the hon. Gentleman makes is more a matter for debate than a point of order, but I have no doubt that the Home Secretary may want to respond to it.

Charles Clarke: On the point that has been raised, the fact is that the best way of putting a time scale into this can be either through the rules of the court or through legislation. It is precisely that which we are considering. We will need to consider it in a little detail before finally tabling an amendment.

Dominic Grieve: May I take the Home Secretary back to the intervention of the right hon. Member for Southampton, Itchen (Mr. Denham)? One of the problems of prosecution is that, the moment the Government embark on the course of action of issuing a control order, it is likely to make the possibility of a fair trial of any person who has been subject to those procedures extremely difficult. What will the Government do about that?

Charles Clarke: That is a real question. My right hon. Friend the Member for Southampton, Itchen has raised it on a number of occasions, which is why it is important that the avenues for prosecution are explored to their utmost before getting to the point where we have the control order as suggested, but at the end of the dayI come back to the point that I made earlierwe need to be able to deal with this small group of people in the way I have suggested.

Lynne Jones: Will my right hon. Friend give way?

Charles Clarke: Not at this stage.
	I have heard the arguments, which relate to the prosecution point, about whether, once legislation has been brought forward to give effect to any new offencesand I indicated those both in my statement last Tuesday and on Second Readingthere is still a need for control orders. Therefore, I will be asking the independent reviewer of the control orders legislation specifically to comment on the impact of any new legislation each year in his report on the operation of the new powers.

Andrew MacKinlay: Will my right hon. Friend give way?

Simon Hughes: Will the Home Secretary give way?

Charles Clarke: Not at this moment.
	I believe that, in putting forward these four changes, I am seeking very substantially to meet the views of the Committee.

Andrew MacKinlay: Will my right hon. Friend give way?

Charles Clarke: I will give way in a second. I need to clarify one point for the right hon. and learned Member for Rushcliffe (Mr. Clarke) in case I in any way misled him and the Committee. To be absolutely clear, at the first stage of the hearing the test is prima facie, not
	satisfied on balance of probabilities,
	but it is fuller than he suggested because it includes whether or not there are reasonable grounds for suspecting that the person is a terrorist and whether there are reasonable grounds for believing that the imposition of obligations is necessary. Of course, the full hearing will be heard very soon afterwards. I did not want to mislead him, so I wanted to clarify that point.

Kenneth Clarke: I am very grateful to the Home Secretary for that clarification, but I am also grateful for the concessions that he is plainly trying to make to get as wide a body of support as possible. Indeed, his final point goes to the root of his concession. He has been asked by Members in all parts of the Committee whether he will hand over the power that he is seeking as Home Secretary to deprive someone of their liberty to a judge who, upon application from him, can then deprive someone of their liberty. According to the Home Secretary, all that the judge will have to be satisfied of at this first stage is that there is a case to answer. That is not in fact a full transfer of the decision. What troubles many of us is that a British subject or a foreignerwe cannot discriminateshould not be deprived of his liberty by the order of the Home Secretary, unless the latter can satisfy a judge through what is an admittedly closed judicial process that there is at least, on the balance of probability, a need now to deprive that individual of his liberty. With great respect to the Home Secretary, all that he is doing is putting in a minor check before the process proceeds to an inter-parte hearing, which, he says, will provide the substantial protection at a later stage.

Charles Clarke: I do not accept that this is a minor change. First, the judge is able to see all the material. Secondly, a full hearing will rapidly occur in the circumstances described. The change that I am proposing is therefore very much more than a minor one.

Andrew MacKinlay: Will my right hon. Friend give way?

Charles Clarke: In a second.
	I have set out four changes that I believe go a significant way towards dealing with the concerns expressed not only about derogating, but non-derogating control orders. I have been asked by a number of Members in all parts of the Committee to explain why I differentiate between the two types of order. I intend to do just that, but before I do so I will give way to my hon. Friend the Member for Thurrock (Andrew Mackinlay).

Andrew MacKinlay: That is the issue about which I wanted to ask my right hon. Friend. We do not understand why there should be a different threshold of test before a judge in respect of non-derogating orders, which can be just as offensive not just to the individuals suffering them, but to Members of Parliament who are concerned about jealously preserving rights and liberties. Why should there be a different procedure? Why can we not have full and thorough oversight by a judge in all circumstances, and in respect of all the evidence relating to non-derogating orders?

Charles Clarke: That is precisely the issue that I am about to address.

Edward Garnier: I do not want to press this point time and again, but will the Home Secretary ensure that the House has ample opportunityby that I mean not just one or two hoursafter the other place has considered the amendments to reconsider them in the light of the Lords discussion? We are delighted to hear from the Home Secretary, but this discussion has got precisely nothing to do with the tabled amendments. We must have an opportunity to look at them and to discuss his ideas once the amendments have been considered by the Lords.

Charles Clarke: The hon. and learned Gentleman has made that point before and I have noted it.

William Cash: Does the Home Secretary accept that, as I mentioned on Second Reading, one of the biggest problems is the question of whether a person detained in such circumstances would have the right to habeas corpus? It is crystal clear that the decision taken by the House of Lords during the second world war in the case of Liversidge v. Anderson has since been completely overridden by subsequent decisions taken by the Lords and others. The Home Secretary knows about whom I am talking. Will he state unequivocally now that there will be no interference with the right of habeas corpus, bearing in mind that habeas corpus was still available during the second world war under emergency powers?

Charles Clarke: I am advised that I can give the assurance that the hon. Gentleman is looking for: the proposals that I have established will not interfere with habeas corpus.
	I come now to the questionwhich a number of Members have genuinely raisedof why I have sought to differentiate between cases involving a deprivation of liberty and those that do not. I begin by acknowledging that all control orders will impose greater or lesser restrictions on individuals' activities and movements. They could interfere with convention rights such as the right to respect for private and family lifearticle 8freedom of expressionarticle 10and freedom of assembly and associationarticle 11. There is no doubt about that whatsoever. It is also clear that interference with those rights is permissible under the convention, provided that it is justified by a legitimate aim and is proportionate. It does not involve a derogation from the ECHR and it is not the same as a deprivation of liberty. Restrictions on freedom of movement, freedom to choose residence and freedom to leave a country do not fall within the concept of deprivation of libertynot as set out by me, but as set out in the European convention to which this country has rightly signed up.
	What is necessary for deprivation of liberty to take place? It is about the extent to which a person's physical liberty is curtailed; it must be of a degree and intensity sufficient to justify a conclusion that liberty has been deprived and not merely restricted. I put it to all Members with all the powers at my command that this distinction between a restriction of liberty and a deprivation of liberty is a real and important oneit is not simply trivial in regard to these issues.

Robert Marshall-Andrews: We hear what the Home Secretary says, which is, indeed, enshrined in an unsigned and unattributed document that can be found in the Vote OfficeA Note on Non-Derogating Control Orders. It describes deprivation of liberty as a technical term from the outset and at the end draws a distinction between liberty being deprived and liberty being restricted. May I ask the Home Secretary where on earth that distinction can be found in the European convention on human rights, or, indeed, in any other legal authority known in this country?

Charles Clarke: As I understand it, the distinction is drawn very clearly in the European convention on human rights and it has been carried through in the judgments of the European Court. That is the basis on which the argument is made. It is a critical point.

Several hon. Members: rose

Charles Clarke: I will give way later.
	If we are saying that any restriction on liberty, of whatever kind, is equivalent to any other restriction of liberty, of whatever kindthe argument put by my hon. Friend the Member for Thurrock was that there is, indeed, equality of concern between any restriction of liberty that might ariseI am afraid that I simply cannot accept that. There is a distinction between a particular restriction and what amounts to a deprivation of liberty under the European convention. My point, which I make powerfully, is that it is legitimate under that convention to restrict liberty, provided it is justified by a legitimate aim and provided it is proportionate.

Rob Marris: The document to which my hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews) referred, continues on page 2:
	It is the case that a combination of measuresnot specifically provided for in the designated derogation ordercould amount to a deprivation of liberty within the meaning of Article 5 ECHR. But if a control order contained such measures it would be unlawful and would be quashed by the court on appeal.
	I can understand the distinction, but a package of measures could be susceptible to attack in court if we had not derogated. However, what would be the position down the road if we had derogated from the ECHR and in a non-derogated case a package of measures were, taken together, extremely restrictive? Could the individual still apply to the court, or would the court say that the UK had now derogated?

Charles Clarke: It is a good question and the position that would arise is clear. It would be open to anyone who had an interest in that particular case to argue that the procedures under derogation applied to the package of non-derogated rights in those circumstances and it would move over. That is to say, the police, the security services or the Home Secretary would not be acting legally if they put forward a package of measures that added up to deprivation under the procedures set out for non-derogated rights. I believe that that makes it clear.

David Winnick: The job of the Committee is to try to balance concern for civil liberties against the danger of terrorism. If we do not achieve a proper balance, we are not doing our job as Members of Parliament. I accept, of course, my right hon. Friend's integrity, but if there is a distinction between depriving someone of liberty and restricting it, and if we are going to restrict a person's liberty, why not allow the usual court procedures to apply to those circumstances? That would surely allow the Home Secretary to gain far more support for what he is trying to achieve. I simply cannot see any reasonI doubt whether the other place will eitherto grant such a distinction.

Charles Clarke: Perhaps I have not been clear enough in setting out my case. I appreciate what my hon. Friend said about my integrity in these matters. There is a range of circumstances surrounding restrictions of liberty, and the restrictions are exercised by various authorities. To provide an example, there are currently warrants authorised by the Home Secretary that allow people's telephone conversations to be listened to under a certain procedure that is clearly set out and approved by the House. Does that amount to a restriction of the liberty of the person whose phone is being listened to? I would say that it does. If a police officer locks someone up in a cell for a while for causing an affray, that is also clearly a restriction of liberty.

Several hon. Members: rose

Charles Clarke: In all cases under law, a proportionate series of levels of judicial involvement are justified according to the particular circumstances that pertain.

Dominic Grieve: Will the Secretary of State give way?

Charles Clarke: No, I will not give way until I have finished what I am saying.
	It was argued on Second Reading by my hon. Friends and others that it is unacceptable to deprive someone of liberty, in the context of house arrest or detention or other serious cases, without judicial authority. I have thought about it and answered the point. I have responded positively to that concern, although I cannot escape the fact that a wide range of restrictions of liberty apply.

Dominic Grieve: I have to say that I disagree entirely with the distinction that the Home Secretary has attempted to draw. Although listening into someone's telephone calls may interfere with their right to privacy, it does not interfere with their liberty. Liberty is about a person's ability to go about their lawful business without interference. One need reflect only on the powers that the Home Secretary is arrogating to himself in clause 1 to see that there are numerous powers that interfere with a person's ability to go about their lawful businessand some of them do so in a potentially very unpleasant fashion, which I would certainly equate with a clear deprivation or infringement of their liberty. I cannot understand the argument that these should be subject to a different category of test before the courts. The Home Secretary has so far produced no rational justification for doing so.

Charles Clarke: So let me attempt to do just that. Although my hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews) wants to punish me for it, I am quoting from the note to which he referred earlier. I thought that it would be helpful to the Committee to produce a note to clarify the position. The fact is that control orders are preventative orders. They are designed to prevent future atrocities from happening

Robert Marshall-Andrews: Will the Home Secretary give way?

Charles Clarke: I will not give way until I have finished my sentence.

Robert Marshall-Andrews: Before the point is left?

Charles Clarke: Yes, I will give way before I leave the point. My hon. and learned Friend is always impatient. Some say that it is one of his more endearing characteristics, but I am not sure that I agree.
	As I was saying, the control orders are designed to prevent future atrocities from happening, not to punish a person for past events. Those preventive orders require an assessment of the overall security situation, of the risks posed by particular individuals and of what measures are necessary and appropriate to meet those risks. It must be carried out on the basis of a wide range of complex intelligence and other material, and it involves making inferences and evaluations about matters affecting national security. I maintain that the Secretary of State is in a better position to carry out those judgments than the courts.

Robert Marshall-Andrews: I am most grateful to the Home Secretary for giving way, and in particular for the charm and affection with which he does so, which makes it slightly unfortunate that I have to ask this question. He has told the Committee that the European convention on human rights provides a distinction between deprivation and restriction of liberty and that it specifically allows for restriction of liberty, so will he please tell us in which particular article that appears?

Charles Clarke: I do not have the article in front of me. I am advised that it is article 5, but I would be wary of putting that on the record.
	The example that I gave earlier was of a number of articles in the European convention on human rights that allow a restriction of liberty in a number of different areas.

Simon Hughes: May I ask the question in a more personal way? The Home Secretary used to be president of his university students union. Does he accept that his successor, as president of the Cambridge students union, should be deprived of his or her right to go to Scotland, to meet their family, to talk to people, or to read something without being able to argue their case in open court? That is the issue. I cannot believe that he would have accepted that when he was president of the students union and I cannot believe that, in his heart of hearts, he believes that it is acceptable now.

Charles Clarke: I am trying to think who the hon. Gentleman is referring to. My successor was a man, not a woman.
	In my heart of hearts, I believe strongly that the nation's security is important and that it is important to stand up for the nation's security. That is what I intend to do.

Vera Baird: Could I return to the sentence that my hon. Friend the Member for Wolverhampton, South-West (Rob Marris) quoted? A combination of measures could amount to deprivation of liberty under article 5. That document refers to control orders, not derogating orders. My right hon. Friend accepts, therefore, that it is possible to take liberty away through a non-derogatory control order. If liberty is taken away under clause 2, he must go to a judge first. He can take liberty away under clause 1, but without going to a judge, except that there would be a right of appeal. In both cases, liberty is taken away, so how can a different procedure be justified?

Charles Clarke: I think I can help my hon. and learned Friend. First, a Home Secretary who, on advice, including legal advice, sought improperlythat is the implication of the questionto deprive someone of liberty, whether by an individual derogating control order, or by a combination of non-derogating control orders, would be acting wrongly. Moreover, having acted wrongly, he would be overruled by a judge on appeal and the case would then have to be referred immediately, under the derogating procedure, to the higher level judicial authority set out in the proposal. That is a clear guarantee to meet the sort of concern that my hon. and learned Friend is raising.

Vera Baird: The difficulty is that the liberty of the subject will already have been taken away by Executive order and the victim could only appeal. The Home Secretary accepts that taking away someone's liberty under a clause 2 order should be done only by a judge. What is the difference?

Charles Clarke: There is a major difference, which I tried to set out earlier. Let me be clear about whether non-derogating control orders deprive someone of liberty. Derogating obligations must be set out in designated derogation orders. There must be an order to allow the whole process to take place and it must be approved by the House and the other place. It will be clear from the designated derogation order what may be permitted in the derogating control order. The derogating control order before the House and the other place must set out what might be permitted in the derogating control order. If those measures were imposed, the derogated control order procedure would have to be followed and is set out in my proposals. If the other measures were not in the designated control order and amounted to deprivation of liberty, they would be unlawful and would be quashed.

Vera Baird: I accept that entirely, but a judge must be asked to consider an application to take someone's liberty away under clause 2 and, if it is unlawful, he will not grant it. Why does not the same apply under clause 1? It would be unlawful if my right hon. Friend made an order under clause 1 that deprived someone of liberty, but the subject would be locked up and could appeal. If the Home Secretary had to apply to a judge first, the judge would not grant the order if it was unlawful.

Charles Clarke: The procedures that I set out meet the guarantee that my hon. and learned Friend is asking for. If she is asking why do I not propose an identical procedure for derogated control orders and non-derogated control orders, the answer is that the deprivation of liberty issue is of a key and different character from the restrictions of liberty that we are talking about elsewhere.

Nick Palmer: I am grateful to my right hon. Friend for giving way for the umpteenth time. He has been generous with his time.
	The lawyers' festival that we are having today does not fully reflect the balance of views elsewhere. People are looking for a guarantee against arbitrary detention and reassurance that people who are reasonably suspected of being a threat are detained until their cases can be fairly heard within a reasonable time. I broadly sympathise with my right hon. Friend, but I am not sure that it would interfere with what he is trying to achieve if he also involved a judge in the weaker cases that we are now discussing.

Charles Clarke: I have voluntarily imprisoned myself in a lawyers' festival and sought to eschew appeals to a wider public generally in this argument, although there is plenty of room to do so. I agree with my hon. Friend that it is reasonable for the elected House of Parliament to bear in mind what our constituents think about these matters. They want a Government that will protect national security and we are determined to do so.

John Denham: I understand that my right hon. Friend's current difficulty stems in part from the concession that he made earlier today. As I said last week, none of our institutions, including the judiciary, is properly designed for the purposes that we face. We must evolve further in an investigatory direction in the years to come.
	My right hon. Friend has just read from the note from the Vote Office. He said of non-derogating control orders that
	The assessment must be carried out on the basis of a wide range of complex intelligence material and involves inferences and evaluations being made in relation to matters affecting national security.
	That is true, but it is equally true of derogating control orders. That is the process.
	With all due respect to my right hon. Friend, having made the decision today to put that process in the hands of the judiciary for derogating control orders, the argument for doing the same for non-derogating control orders becomes irresistible. I entirely accept his argument that they are measures of a different order and that people are nit-picking around that issue, but it does not justify a separate process.

Charles Clarke: I respect my right hon. Friend, but there is an important qualitative difference between deprivation of liberty as defined by the European convention on human rights[Hon. Members: We cannot hear.] I am sorry if hon. Members could not hear me. I believe that there is a qualitative difference between deprivation of liberty within the context of the European convention on human rights and something that is not a deprivation of liberty. I understand the concerns that hon. Members are raising about how far one goes down that course, whether a combination of restrictions can add up to a deprivation and how to ensure that that is properly dealt with by the procedures, but there is a qualitative difference, which is established in case lawthe cases are given in the documentand in many other ways.

John Denham: I entirely accept the first half of my right hon. Friend's argument that there is a qualitative difference, but where does that provide the justification for a difference of process? What is going on is this terribly difficult issue of assessing what the intelligence services are telling us, the national risk and the role to be played by an individual. We must either decide that we are to involve the judiciary at the outset, or that we are not. Having decided that we are, we must do that across the piece.

Charles Clarke: I am grateful to my right hon. Friend for conceding the qualitative difference involved in the deprivation of liberty. The point[Interruption.]

Patrick Cormack: On a point of order, Sir Michael

The Second Deputy Chairman: Order. I believe that I may presume what the hon. Gentleman wishes to say. It would be helpful if the Home Secretary could address the whole Committee. It is tempting to address the person who has just intervened, but it is more helpful to address the whole Committee.

Charles Clarke: I apologise to members of the Committee who did not find my back as entrancing a prospect as my hon. Friends do.
	I was saying that I was grateful to my right hon. Friend for accepting a key and important part of the argumentthat there is a distinction between circumstances in which an individual is to be deprived of his liberty and those in which he is not deprived of his liberty. My right hon. Friend then arguedif I have correctly understood himthat, despite that distinction, the processes in both cases should be the same. I do not accept that point because the key argument that I heard for the involvement of a judge at the initial stage related to the deprivation of liberty. The argument was that, whether it involved house arrest or detention of some other kind, deprivation of liberty was such a serious matter that it could not be left in the hands of a Minister, but had to be put before a judge. I have, reluctantly, accepted that argument, which was made by my right hon. Friend and others, but I do not think that that argument applies to cases in which the subject will not be deprived of his liberty.

Menzies Campbell: I am most grateful to the Home Secretary for being so generous in giving way. A moment ago, he reminded us that the purpose of the legislation was to try to ensure, so far as we can, the protection of the people of the United Kingdom. How will they be better protected if he pronounces the order in cases of non-derogating orders, instead of a judge doing so?

Charles Clarke: In either case, whether it is done by the Home Secretary or a judge, the people of the United Kingdom will be better protected if we have a regime of control orders that deals with the people in question. That is common ground between us. We then come to the issue of prevention, which is at the core of this discussion, and the range of considerations that have to be taken into account. The question that then arises is whether a Ministerthe Home Secretary, in this caseis in a better position to make that assessment than a judge. I argue that the Minister would be in a better position to make the assessment

Andrew MacKinlay: Why?

Charles Clarke: That is an important question. It is because, by definition, someone from the Executive would have access to all the information in a way that a judge would not. However, I also accept the argument that, in the case of deprivation of liberty, the penalty is so great that judicial involvement is required. That is the basis of the argument that I make.

Menzies Campbell: In the latter part of his answer, the Home Secretary seemed to say that it is a question of degree but, for most right hon. and hon. Members, it appears to be a question of principle.

Charles Clarke: Let me take the context that is given in the note that I provided earlier. In the case of Rehman, Lord Hope set out the position clearly. He concluded:
	It is a question of evaluation and judgment, in which it is necessary to take account of probability of prejudice to national security but also the importance of the security interests at stake and the serious consequences of deportation for the deportee.
	That argument was made in the context of a deportation judgment, but those same considerations apply in the cases that we are discussing. That is a substantial difference, as I hope the Committee will acknowledge.

Dominic Grieve: I wonder whether the Home Secretary has fully understood the position. If he has not, it may explain some of his difficulty. It has always been accepted in English law that the Home Secretary has a residual Executive right to deport aliens. That is one of the reasons those deportation rights have remained, even if qualified by the Human Rights Act 1998. However, we are not now talking about deportation or dealing with aliens: we are talking about the rights of British subjects to live in peace and be subject to pains and penalties only by due process of law. We are moving into uncharted waters because the Home Secretary says that he wishes to introduce a completely new system of imposing pains and penalties on individuals without due process of law. The argument that he has just put forward about deportation is irrelevant, because we must consider how bestin the circumstances that the Home Secretary has put forwardwe can protect the liberty of the individual. The Committee's overwhelming view is that that can be best done by having a judicial process.

Charles Clarke: I am sorry if the hon. Gentleman feels that I have not understood the issues. I must say that I have spent decades of my life being patronised by lawyers, and I do not appreciate it.
	I understand the issues clearly and well. I draw to the hon. Gentleman's attention the fact that both Badat and Reid, whom I mentioned earlier, are British citizens, and that is why the issue before us is not simply about immigration law. It is the issue of what we do about British citizens as well. That was the point made by the Law Lords. The regime that we are talking about will apply to British citizens, and it is a serious matterI have not sought to hide that at any point in the debateof the balance of judgments between security and liberty. However, the fact is that real and present dangers exist that we must address. We can legitimately have an argument about the right procedure, but the Committee should not try to suggest that there is no issue to be addressed. There is an issue that must be addressed.

Boris Johnson: I have no hesitation in admitting that I do not understand one particular point. In the Home Secretary's mind, what measures amount to a deprivation of liberty and what measures amount to a restriction of liberty? What combination of restrictions of liberty could amount to a deprivation of liberty? Could he give examples of each of those three categories?

Charles Clarke: I shall give the Committee examples. An example of a restriction of liberty might be being forbidden to have a mobile telephone or to contact another named individual, who is known to be a terrorist organiser of some kind. A deprivation of liberty would be a matter of what is colloquially called house arrest or of actual detention. The question of whether a combination of restrictions adds up to deprivation depends on the particular combination. I dealt with that point when replying to my hon. and learned Friend the Member for Redcar.

Richard Shepherd: The distinction that the Home Secretary draws between non-derogating and derogating orders is very difficult in many instances. For example, a person's ability to work could be restricted by orders relating to the use of the internet. Only a judge can determine whether what the Home Secretary calls non-derogating matters are proportionate. Therefore, ultimately, the orders should come before a judge who can decide that question under the terms of the convention and our human rights legislation. That is why the right hon. Member for Southampton, Itchen (Mr. Denham) and the hon. and learned Member for Redcar (Vera Baird) were right to say that no distinction should be made between the processes for determining those matters.

Charles Clarke: I have sought, as best I can, to say why I think that there should be a difference. Fundamentally, the difference is that deprivation of liberty is a qualitatively different matter from restrictions on liberty.

Frank Dobson: I accept my right hon. Friend's point about the qualitative difference, but we must proceed on the assumption that any deprivation of rights should not be subject to the arbitrary decision of the Home Secretary. My right hon. Friend has sensibly conceded the change in relation to locking people up. It is reasonable to assume that the people who need to be locked up are the most dangerous of the categories being dealt with, so we find it difficult to understand why he is not prepared to use the same procedure for those who are less dangerous.

Charles Clarke: I am grateful to my right hon. Friend, as his intervention allows me to set out clearly the reasons for the argument that the Home Secretary is not unlimited in what he or she can do on these measures. First, the Bill itself makes it clear that a control order can impose only obligations that the Secretary of State considers necessary for preventing or restricting further involvement of the individual in terrorism related activities. That is a substantial restriction. Secondly, the Secretary of State is required by section 6 of the Human Rights Act 1998 to act compatibly with the convention rights of the individual and his family. It would be unlawful for the Secretary of State to impose restrictions that breached their convention rights. Moreover, the courts would quash an order that did so. Interferences with private and family life, association and communication will have to be expressly justified in each case by a specific aim permitted by the conventionin this case, we are talking about national securityand will also have to be proportionate to that end. The Secretary of State will have to weigh up very carefully in each case whether measures can be imposed that are consistent with convention rights. Finally, the Secretary of State's decision may be appealed to judicial review in the ways that I have indicated. More generally, we are proposing a complicated set of procedures whereby the Secretary of State has to report to the House on the way in which the control order regime is operating.

Richard Burden: I am sure that my right hon. Friend will weigh up those things incredibly carefully, but may I return him to what my hon. and learned Friend the Member for Redcar (Vera Baird) said? By the time somebody who was put under a combination of control orders that individually were restrictions but collectively could amount to deprivation of liberty could question that, it would be a bit late. By that stage, they might be unable to talk to people or to move around. All they could do would be to appeal on judicial review. There is no automaticity in that. In my right hon. Friend's first proposal, he suggested that a court should automatically check what the Home Secretary was doing, so why in this proposal is there not even automaticity?

Charles Clarke: To be candid, although I understand the argument that the identical process should extend to non-derogated orders as to derogated orders I do not accept it for the reasons that have been set out. My hon. Friend's concern that there would be some process of slide, whereby a combination of non-derogated deprivations that added up to a derogation would slip past the courts and procedures, is simply wrong.

Several hon. Members: rose

Charles Clarke: I have considered the best course of action to follow when so many Members want to intervene, and I shall now come to the end of my remarks at this stage, to enable proper speeches and contributions to be made by Members who wish to do so.
	I have set out clearly a course of action that responds to many, many of the issues that were raised. It deals with the fact that we have to make a balance between security and liberty. I believe that we are making it correctly in these procedures, and that we are seeking appropriately and correctly to find the balance.

Crispin Blunt: On a point of order, Sir Michael. I apologise to the Home Secretary for interrupting him, but this is an important matter of procedure. Will it be possible to reply to the substantial case that the Home Secretary has made against the abolition of the distinction between non-derogating and derogating control orders, which was actually selected for consideration in the second group under clause 2? Will it be in order to make speeches, following the Home Secretary's points, under the group that we are currently discussing?

The Second Deputy Chairman: We are discussing amendment No. 4 and the other amendments listed on the paper before the Committee

Mark Fisher: On a point of order

The Second Deputy Chairman: Order. Let me deal with one point of order at a time.
	It is up to hon. Members themselves how they respond to the debate. Obviously, the Chair will make sure that proceedings are in order.

Greg Knight: On a point of order, Sir Michael. The Home Secretary has been generous in giving way and he has spoken at length, but almost exclusively to his letter, which has no legal standing at all. He has not spoken at all to this group of amendments and new clauses. Is it your understanding, Sir Michael, that he will seek to catch your eye later in the debate? Almost uniquely in such a situation, the Home Secretary has not addressed at all the items before the Committee for consideration.

The Second Deputy Chairman: The right hon. Gentleman is not raising a point of order so much as a matter for debate. The Committee is obviously ranging widely at the moment, and that is part of its wide range.

Simon Hughes: Further to that point of order, Sir Michael. I hope that the Home Secretary can help us. May we ask him through you if he will indicate which of the amendments in the group are covered by his proposals? Those could easily be voted through and we should be halfway done.

The Second Deputy Chairman: The Home Secretary indicated that he had concluded his remarks for the time being

Several hon. Members: rose

The Second Deputy Chairman: Order. I think that other hon. and right hon. Members should have the opportunity to express their views and we will take matters in the usual way.

Kenneth Clarke: Further to that point of order, Sir Michael. I think that we are dealing with a matter of order and not just of the content of the debate. For about an hour and a half, the Home Secretary has carried out something of a tour de force, discussing and debating with every member of the Committee the concessions that he is trying to make, but he has illustrated the dangers of not following the normal procedures by just making a speech at large about what the Bill will be like when it has been amended and the type of issue that will then be thrown up. Having listened for an hour and a half, I am partially persuaded on some points, although not on others. Like other Members, I can think of a whole raft of amendments that I should now like to table to clarify some of those pointsalthough I would be helped if I could first see what the Government were proposing.
	This is a chaotic way of proceeding. For most of the last two hours nothing has been said that bears any relation to the selection of amendments before us. With respect, Sir Michael, I repeat the request that we have a brief adjournment or suspension of the sitting to consider how best to proceed. Perhaps the Leader of the House might be tempted from 50 yd away, where he is no doubt watching these proceedings on screen, to come to the Chamber and suggest how we might proceed. If we now revert to the first selection of amendments, Sir Michael, and you call Members to make speeches and remotely try to keep to the rules of order, you will have to rule most of the speakers out of order as soon as they start dilating on half the things that the Home Secretary has just told us. That underlines why we have normal procedures

The Second Deputy Chairman: Order. A number of Members have asked for a suspension this afternoon, but we have proceeded in the circumstances in which we found ourselves. I am not in a position now to suspend the Committee, but I am in a position to make sure that we debate the amendments before us and their effects and ramifications, which are wide. If matters had been out of order, my predecessor in the Chair would have ruled them so. We are now simply wasting time

Several hon. Members: rose

The Second Deputy Chairman: Order. It is important that we have some order. We have had interventions on interventions on interventions this afternoon, and it is very difficult to get order in those circumstances. It is time we moved on. The Chair will do his best to make sure that things are in order. I call Mr. Dominic Grieve.

Dominic Grieve: I hope that it will be in order, Sir Michael, if I treat amendment No. 4, tabled by the hon. Member for Bridgend (Mr. Griffiths), as a request to the Committee to include not only judicial oversight, but judicial participation in the making of control orders as proposed by the Government. I am obviously also aware that many other amendments follow on from that tabled by the hon. Gentleman including some tabled by myself and my hon. Friends, and indeed, in some cases, signed up to by Members on both sides of the Housethat provide different ways and mechanisms for doing that. Perhaps I can just say in passing, to avoid having to return to it, that new clause 6, which comes at the tail end of the groupI am very grateful to Justice for proposing it in such short orderprovides a mechanism that would allow a possible way forward by providing such a system. I shall say no more about that at this stage.

Edward Garnier: Before my hon. Friend moves on and says no more about that matter, may I ask him about new clause 6? As he correctly says, it comes at the end of the great list of amendments about which we have not been speaking for the past hour and a half, and as it is a new clause, any vote taken on it will presumably come towards the end of our proceedings. Will he ask us to divide the Committee on new clause 6? It is clearly not only a matter that needs to be spoken about, but a public expression of opinion received.

Dominic Grieve: I have some slight doubt about whether we will reach new clause 6 to put it to the vote, but it certainly struck me that it is the closest that we have come to finding a sensible mechanism if we are to pursue a line of discussion about setting up a sensible framework for judges to make decisions about whether control orders should be imposed.

William Cash: I do not in any way wish to enter a discordant note, but I suggest that my hon. Friend look at new clause 6(8), which says:
	The court shall not impose any obligation under subsection (7) unless it is satisfied,
	among other conditions,
	that the obligation is consistent with the defendant's Convention rights within the meaning of the Human Rights Act 1998.
	He will appreciate the fact that I have affirmed over and over againthis did not come out just nowthat the problem is that the Government are in a jam precisely because the human rights legislation has created a lot of artificial distinctions that they are now trying to deal with. Does he accept that it would not be desirable for us to adopt provisions that have to be consistent with the Human Rights Act, and that new clause 5, which I tabled, would provide a way to deal with that?

Dominic Grieve: Given that the Human Rights Act is on the statute book, I think that it were well that the Committee should seek to comply with it. There may well be wider issues about whether the Human Rights Act is desirable, or whether we should simply rely on the European convention on human rights, but for the present purposes of today's debate, I am comfortable with new clause 6 in the form in which it was proposed.

John Denham: The hon. Gentleman draws the Committee's attention to new clause 6, in the name of the shadow Home Secretary. It is a proposal for control orders for a person who
	is or has been involved in terrorism-related activity.
	It goes on to sayI presume that this is the position of the official Oppositionthat
	the court must apply the criminal standard of proof.
	Surely if there is sufficient evidence to show to a criminal standard of proof that people are involved in terrorism-related activities, the thing to do would be to prosecute them for terrorist activities. Are not the Opposition ruling out the very problem that we are trying to tackle: individuals against whom there is not sufficient information to apply the criminal standard of proof, but against whom we still need to take action?

Dominic Grieve: The right hon. Gentleman is slightly jumping the gun. We are considering the Bill in Committee. In theory, we are supposed to be moving amendments for consideration by the Committee, so that it may consider them. There are some perfectly valid arguments and points to be made about using a different standard of proof from the criminal standard of proof, although for the purposes of debate, I certainly share Justice's view that the idea of starting with the criminal standard is a good one. I am also mindful of the right hon. Gentleman's point.
	One of our problems is that the debate in Committee has been completely corrupted: instead of our having the opportunity for informed debate on individual points, which is what I should have liked, it has been hijacked and we must move on to the rather different problem of evaluating the comments made by the hon. Member for Bridgend against the proposals made by the Home Secretary in his lengthy speech. It is to that issue that I shall now turn, but before doing so, I reiterate for the benefit of   the right hon. Member for Southampton, Itchen (Mr. Denham) that as we are starting with a model that is not necessarily word for word what we want, it struck me when I considered the various amendments that Justice's ideas merited careful scrutiny, and I flag that up in case we ever, which I rather doubt, have an opportunity to return to them.
	I now turn to what the Home Secretary had to say. The nub of his argument is that although he has conceded, compared with his position last week, that there are arguments for the sort of mechanisms that the hon. Member for Bridgend wants for control orders that require derogation, he can see no reason or purpose for having them in cases that do not require derogation. As I hope was clear from my interventions, I find the Home Secretary's argument completely unsustainable, and I wish to take just a few minutes of the Committee's time to explain why.
	First, I return to the comment that I made to the Home Secretary originally that elicited his remark that he was being patronised by lawyers. I certainly apologise to him; I had no intention of patronising himrather, I thought that as Home Secretary, he would probably have access to a great deal of sound legal advice and opinion. However, I did not understand the point that he made. He had called in aid Lord Hope's comments in a case called Rehman in which he said that in deportation cases it was appropriate that the Home Secretary, rather than a judge, should make the decision when the wider national interest had to be considered. I suppose that, to an extent, the Home Secretary linked that to the comments that Lord Donaldson made earlier today, when he expressed some reservations about judges being the principal participants in the process of control orders that the Government wish to take up.
	I wish to make two points about those comments. First, if Lord Hope was referring only to deportationI have to tell the right hon. Gentleman that I think that he wasthat is clearly different from a process whereby the Home Secretary decides to take powers not to deal with aliens by deporting them, which has long been accepted in this country as one of the very few Executive powers to deprive people of their liberty that the Home Secretary has, but to translate that into a completely new field, irrespective of whether it applies to foreigners or British citizens, where the Home Secretary, by Executive fiat, deprives individuals of liberty. I believe that the two things are entirely different in principle. The truth is that we are moving into completely uncharted waters.

Lynne Jones: Is not the difference also that with deportation orders, there is an appeal process before the actionthe deportationis carried out, whereas control orders will be implemented before any appeal process can take place?

Dominic Grieve: The hon. Lady is right, and of course, I accept that the end result of the deportation process is not that people are permanently deprived of their liberty, but that they deported. So the two things do not have equivalence, but we in this country have always acceptedcertainly, until the Human Rights Act began to bitethat the Home Secretary has powers to detain aliens, pending their deportation, subject to judicial scrutiny and safeguards. We are not talking about that; we are talking about, at worst, a system of Executive detention, and at best, a parallel system of justice with control orders based, most regrettably, on secrecy, on the inability of a defendant to be given the full facts that he must answer, and on a person being subject to a variety of constraints that would previously have been totally unknown in our law. That is the point.

Tom Harris: The hon. Gentleman prays in aid Lord Hope's comments in the Rehman case and claims that they relate specifically to a deportation case. Of course that is right, but surely the point of Lord Hope's comments is that he was drawing a distinction and claiming that
	the whole concept of a standard of proof is not particularly helpful in a case such as the present . . . It is a question of evaluation and judgment.
	He was talking specifically not about the kind of case on which he was sitting in judgment, but about whether we move to a new standard of proof.

Dominic Grieve: I understand what Lord Hope was saying, but he was saying it with specific reference to the only circumstances in which the problem arose: deportation cases. We are not talking about deportation cases. Indeed, the right hon. Member for Southampton, Itchen, who is no longer in his place, rightly identified one of the new procedure's basic problems, which is that the ordinary standards of proofwhether proof beyond reasonable doubt, so that people are sure to the criminal standard, or on the balance of probabilitieshave fairly marginal relevance, arguably, to the sort of procedure that we will be asking judges to carry out.
	That is why I say to the Home Secretary that I have little doubt that Lord Donaldson's anxieties and distaste for this procedure, and perhaps slight desire to pass it back to the Executive, have their origin in not wishing to see the judiciary sullied by interference in a procedure that does not meet the ordinary norms of justice. That is   a very big problem, and one that we will have to grapple with.

Simon Thomas: Does the hon. Gentleman agree that the problem with the Home Secretary's argument about the difference between derogating and non-derogating orders, as evidenced this afternoon, is that he seems to be telling us that we must let the penalty rather than the principle decide the process? Although the Bill will go to the other place, we are in danger of creating legislation in which those who are seen by the Home Secretary to be the greatest threat to the security of the state will have the greatest judicial protection, while those who are deemed to be a lesser threat to the state will have a lesser degree of judicial protection. That is a crazy system if the Home Secretary is serious about the fact that he will make the decisions about who is or is not dangerous to the state.

Dominic Grieve: The hon. Gentleman makes a very good point, and I shall try to come to that issue directly.
	If the Home Secretary can justify each and every control order that he seeksnot just the general overarching principle; it is the detail that matterswe must accept that we are setting up a novel and parallel system of justice that is thoroughly imperfect in terms of the rights of the person who is accused. As I said on Second Reading, when my colleagues first floated to me, as a lawyer, the idea of judges taking such decisions, I found that rather distasteful. It seemed to me to undermine the way in which I expect justice to be done. However, on reconsidering the matter, I have absolutely no doubtthe view seems to be shared by many Membersthat if we really have to go do down this unpleasant and unsatisfactory road, it is much better that judges take the decisions. That will at least provide some protection for the individual and a sense of reassurance that he has been treated fairly.

Clive Soley: May I put two points to the hon. Gentleman, and perhaps take him into the wider debate? It is not right to say that we have never had these powers before in this country in recent yearswe have. We had them in Northern Ireland with internment, and a lot of bad messages came from that. Thousands of people were involved, and there was no judicial process. Similarly, there is no judicial process with exclusion orders. I have increasingly taken the view in recent years that because of the nature of the threat nowI will very much welcome the hon. Gentleman's comments on thiswe should perhaps move towards what we seem to be moving towards anyway. I refer to an inquisitorial system of justice for the narrow area of terrorism. We are bringing judges into the process, and the reason why this problem is not faced in Europe is that people are locked up there while judges decide. That may be what we are deciding now.

Dominic Grieve: I appreciate the hon. Gentleman's point, but I think that we are mixing two different issues. There is the perfectly valid argumentone that we have been pushingthat we need to review our criminal procedures to see whether it might be possible to bring suspected terrorists to trial more easily in view of some of the evidential problems that surround successfully prosecuting them. We have made proposals to the Government about that. We have said, Allow intercept evidence, and have an examining judge collate the material. However, we have not gone down the road of having an inquisitorial process, as in France.
	I have the pleasure of being half French. I am familiar with France, speak the language and have ample opportunity to see how the French judicial system operates in practice. It has many flaws, and they are flaws that I would not wish to see reproduced in this country. That is one of the reasons why I believe our common law system to be superior.

Clive Soley: I agree very much with the hon. Gentleman; I would not want the French system here. However, on the narrow issue of terrorism, I wonder whether we could consider something that might work here with rather more controls than they have in France. Let us remember that they do it rather better elsewhere in Europe. Otherwise we will end up with a system of judges simply deciding the process, and not the whole court procedure.

Dominic Grieve: I appreciate the hon. Gentleman's point, but we are at risk of straying from the subject matter of the Bill. I wish that this were part of the debate, but it is not. All I can say to the hon. Gentleman is that I believe that there is a way of trying to move in that direction without getting rid of the common law protections, and we have put that to the Government in debate on a number of occasions. Unfortunately, our proposal has not been taken up.
	The suggestion made on Second Reading that France was very different because it effectively had Executive detention, with investigating magistrates able to lock people up for ever and a day, is a bit of a calumny on the French system. Although it allows for quite lengthy detention, that still has to be part of a procedure leading to court. If the procedure does not lead to court because there is not the evidence, no amount of investigation can justify detaining someone.

Edward Garnier: I appreciate that my hon. Friend does not want to linger on this point for too long, but has not the hon. Member for Ealing, Acton and Shepherd's Bush (Mr. Soley) made the point that Lord Donaldson was frightened of this morning? Lord Donaldson does not want judges to descend into becoming advocates for one cause or another. He wants judges to remain impartial, disinterested referees or umpires, to use his words. We do not want judges to become advocates on behalf of the Government, MI5 or whoever it might be. Their role is to make sure that the Government do not apply unfair evidential or other tests to the detriment of an individual who should have his fair day in court. If we stand for anything, that is what we also stand for.

Dominic Grieve: I agree with my hon. and learned Friend. My right hon. and learned Friend the Member for Sleaford and North Hykeham made that point powerfully and provoked the Home Secretary into saying, On that basis, control orders are anathema to you.
	To say that I dislike the control orders proposed by the Home Secretary is a serious understatement. I find them disgustingthere is no other way of describing it. However, I have to face up to the fact that the Government may be able to argue that however repellent and disgusting the orders may be, it is necessary to have a procedure for detaining people without the normal due process of law. The question that we must consider is, what is the best way of doing that, granted all the many imperfections? Although I understand that judges may not wish to participate in such a process, the opportunity for a judge at least to evaluate the evidence presented offers a better degree of protection than the Home Secretary doing it himself. That will be subject to many caveats, and we need to consider the detail in the rest of the Bill.

John Redwood: My hon. Friend is making an extremely important speech and I share his distaste. I am delighted by what he has said so far. Does he agree that we would have more confidence in the Government's case if some of the people released from Guantanamo Bay were now facing trial on charges and if we thought that the people who will be released from Belmarsh in due course would also face future judicial action? Is it not remarkable that none of the people who were arrested on suspicion can face trial for any offence at all? I thought we had strengthened the anti-terrorist laws.

Dominic Grieve: My right hon. Friend is right to suggest that the Government have still not found a way of bringing to trial the people against whom they claim that they have massive intelligence information implicating them in terrorism. That is a serious issue, and it returns me to the comments made by the hon. Member for Ealing, Acton and Shepherd's Bush.
	The issue that we must consider is whether judges should make the orders only in cases in which there is a derogation from the European convention on human rights or in all circumstances. On that issue, I found the Home Secretary's arguments incomprehensible. I could not understand why, having conceded that it was necessary for judges to become involved where there was derogation, that was not necessary or could not be done where there was no derogation. There was no coherence whatever in that argument. Indeed, there are compelling reasons for saying that the interferences with the liberty of the individual that are implicit and explicit in the various powers for which clause 1 provides are such that a judge should be required to make an evaluation.

David Heath: The hon. Gentleman knows that I agree with much of what he is saying. Was he as surprised as me that one of the Home Secretary's arguments was the fact that he would be in possession of more information that would be likely to be of evidential value than a judge? If that is the case, does it not suggest that the whole judicial review process is likely to be flawed, given that matters on which the Home Secretary relies will not be relayed to a court?

Dominic Grieve: I entirely agree. The hon. Gentleman might recall that in an intervention on the Home Secretary, I pointed out my puzzlement that the schedule to the Bill seemed to provide that the Home Secretary could be privy to information during the proceedings that he would not have to disclose to the judge, even though it might be relevant. He then said that the provision could perhaps be better worded and that an amendment might be tabled at some stage in the Bill's passage.
	Let us be quite clear that as the Bill is drafted, the Secretary of State is not required to disclose information if he does not propose to rely on it during proceedings. That is remarkable, because I had imagined that if proceedings were to be held in front of a judge, he would be given all necessary information to decide whether the Home Secretary's application for a control order was justified. I do not think that the security of the state would be completely jeopardised if a judge were made privy to such information. Indeed, on a new Home Secretary's first day of work, he will be called upon to make orders on the advice of his officials, with no experience of the background situation in the Department. It is thus a little far fetched to suggest that the Home Secretary is privy to a magical understanding of what the security of the state requires that no one else may have.
	We shall have to return to a further argument that the Home Secretary put forward at a later stage of the Bill's passageor at some point, anyway, because we will not have a later stage. The Home Secretary will need to act quickly. He conceded that in the case of a derogating order, which is presumably the situation in which he must act fastest, he would go to a judge. In the case of a non-derogating order, however, I do not understand why he would need to exercise an Executive function from his bed at 2.30 am when the matter could be taken to a judge at that time. Furthermore, as I have said to the Minister for Crime Reduction, Policing and Community SafetyI hope that she will respond to this point at some stagegiven that existing terrorist legislation allows the police to detain and interview people for up to 14 days if they suspect that a terrorist offence has been committed, I do not understand why the Bill needs to give Executive power for immediate detention to the Home Secretary instead of to the police in the usual way. The police would then decide with the Home Secretary that if no prosecution could be brought, an order should be applied for in the ordinary way.

Hazel Blears: Does the hon. Gentleman accept that the powers under the Terrorism Act 2000 relate to an ongoing investigation of someone who is involved in the preparation, committal or instigation of an offence? As control orders are preventive measures, consideration can be given to not only what has happened, but what might happen in the context of the threat as a whole. A different process of decision making will be used from that which applies when people are arrested on the basis that they have already committed an offence. This point goes to the heart of the matter. The hon. Gentleman is talking about a justice system that examines things after they have happened, but control orders are designed to deal with not only what has happened, but what might happen.

Dominic Grieve: I do not think that I agree with the Minister. When the suspected terrorists were flown back from Guantanamo Bay, instead of coming off the plane and going into the bosom of their families, they were detained by the police, presumably to ascertain whether they had committed offences. After being interviewed, they were released. It beggars belief for the Minister to suggest that if people were suspected of serious involvement in terrorism, there would not be grounds on which the police could arrest them to ascertain whether criminal offences had been committed. I find it impossible to accept that, so I hope that the Minister will clarify her remarks because the situation seems very strange.
	The problem might be that the Government, in their typical fashion, have tried to over-egg the pudding. The Secretary of State has put his case to the world through the media by saying that he needs the power because he might have to make an immediate on-the-spot decision in the middle of the night that could have important consequences for protecting people from an immediate threat of violence. I think the Minister would agree that under that test, the police would have ample grounds to intervene immediately.

Edward Garnier: Is not the absurdity of the Government's position starker than that? I have telephoned judges at all hours of the day and in the dead of night to get a civil injunction to prevent a newspaper from publishing a potentially defamatory article. It cannot be suggested that a judge would be disturbed by receiving a telephone call from the Home Secretary's advocate to say, I'd like a control order, please. If a judge will grant a civil order to ban the immediate publication of a newspaper article, he will not jib one jot at being woken up to make a control order.

Dominic Grieve: My hon. and learned Friend is right: there is absolutely no reason why a judge would not do that. However, I am making the point that given the police's powers of detention, there might be no need whatever for ex parte orders. There will be 14 days to establish an inter partes hearing, so the Minister's anxiety has little validity.
	I want to allow other hon. Members to speak, so I shall bring my remarks to a close. We must face the fact that on any rational analysis, the proposals are seriously flawed. The Secretary of State made the distinction between major infringements of a subject's liberty and minor infringements. It is true that major infringements might be more reprehensible, unless they can be justified, but none of the infringements of a person's liberty proposed in clause 1 should be tolerated unless there are sound and persuasive reasons for doing so. The Committee must face the fact that the Bill is a long-term measure. I fear that such procedures and processes will be in place for years, which makes them entirely different from those in place during the second world war for the detention of enemy aliens, or even the unusual application on certain British subjects under regulation 18B.
	I hope that the Minister will be able to respond to my points at some stage. No coherent argument has been made for rejecting the amendment moved by the hon. Member for Bridgend. If the Committee wishes to persuade the Government that from the beginning judges must make control orders, irrespective of whether they are derogating or non-derogating orders, the sensible thing to do is to vote for the amendment. I hope that the hon. Gentleman will press the amendment to a Division because such an expression of the Committee's opinion would be the best mechanism to present an alternative to the process that the Home Secretary proposes. The Home Secretary tries to persuade us that his proposal is acceptable, but I disagree. He has not made the case for his proposal. Indeed, by making his concession, for which we are grateful, he has gone a long way towards conceding the validity of the case that the hon. Member for Bridgend made.

Robin Cook: It was said a long time ago this afternoon that the letter circulated by the Home Secretary rendered a number of the amendments otiose. I can probably say that it renders my amendments most otiose of all, in that he has accepted the principle behind my amendments to clause 2that the decision should be made in the first instance by the courts. I rejoice in the fact that my amendments are otiose. That is welcome news.
	I would rejoice unconfined if the Home Secretary had said that he would accept the text of my amendments. I have no doubt that the text is defective. I have never come across an amendment tabled by a Back Bencher about which a Minister could not find a reason to argue that it was defective. Indeed, one of my regrets from my period as Foreign Secretary was that we had few pieces of legislation and I did not have adequate opportunity to tell Back Benchers that their amendments were defective. Nevertheless, it would have been a better way of proceeding had the Home Secretary accepted my amendment, or one of the other amendments, and tidied it up in the other place so that when we depart from this place at the end of the day we would at least know what words we had agreed to, rather than expecting them to come back from the House of Lords in a week or two's time.

Greg Knight: As a former Leader of the House, will the right hon. Gentleman confirm that even at this late hour it is possible for the Home Secretary to accept our offer of using Wednesday's Supply day to debate in detail the amendments that are, in effect, contained in the letter? It would also be possible for a business motion to be introduced to allow those amendments to be tabled right up to the beginning of the debate. Is that not what the Home Secretary should do?
	On a personal matter, may I wish the right hon. Member for Livingston (Mr. Cook) a happy birthday?

Robin Cook: I am glad that the right hon. Gentleman brought his remarks to a point of consensus in his conclusion.On the other matter, of course it is technically possible to have a business statement at any time in our proceedings, although it is rather late in the day for us to start all over again. The difficulty is that we are taking the Committee proceedings and the Report stage at one sitting. Had we separated those two, it would have been entirely possible for the Home Secretary, as he has sought to do today, to respond to the feeling expressed in Committee, to give the assurances that he has given, and to introduce the text for us to consider on Report, rather than doing that in the House of Lords.
	Nevertheless, my right hon. Friend was wise to accept the thrust of my amendment, and I can give three reasons why that is the case. First, it is vital that we retain the separation of powers between the Executive and the courts. Any decision on the deprivation of liberty of the citizen should be a matter of judicial process rather than a political judgment. After all, it is our best protection against the arbitrary use of power by the Executive to ensure that any infringement of the liberty of a subject should be a matter of due legal process.
	Secondly, the Home Secretary is the wrong person to exercise this particular power. My right hon. Friend said today, as he has said a number of times, that it is the Home Secretary who has responsibility for safeguarding the security of the nation. I would not argue with thatit is a perfectly fair statementbut it is precisely that consideration that makes him the wrong person to apply the control orders. The decision must necessarily be a balancing act between the evidence of a threat and the right to the liberty of the citizen. The place to put that balancing act to the test is in the courts. It should not be inside the Home Secretary's private office.

William Cash: Only one thing concerns me about what the right hon. Gentleman said both on the Today programme and now. Although I understand where he is coming from, does he accept that he is effectively repudiating the history of the best part of 100 yearsincluding the ruling by Lord Hoffmann in the Rehman case recentlyin which the Home Secretary is assumed to have knowledge, experience and judgment which are, in the view of eminent jurists, including Members of the House of Lords, preferable to those of the courts? That was clearly stated in a House of Lords case only a couple of years ago.

Robin Cook: My broad political ideology does not preclude me from saying that something that has been done for 100 years might possibly be wrong. On the specific issue, however, I have grave anxieties about the argument that the Home Secretary should have access to information to which the rest of us and the courts do not have access. I would be very reluctant indeed to go down the line of depriving a citizen of liberty on the grounds that the Home Secretary's information is not known to the rest of us, particularly in the light of our experience in this Parliament of the case for the war against Iraq.

Lynne Jones: Does my right hon. Friend accept that his remarks about the appropriate involvement of the Home Secretary also apply to the non-derogating control orders?

Robin Cook: If my hon. Friend allows me to develop my argument, I shall return to that.

Several hon. Members: rose

Robin Cook: I shall give way to my hon. Friend the Member for Stoke-on-Trent, Central (Mr. Fisher), but I then want to make progress because I am conscious that a large number of colleagues want to speak.

Mark Fisher: I am wholly in sympathy with my right hon. Friend's comments. Does he agree that in the process of the Home Secretary having access to information to which no one else has access, one of the key details is that the person who is accused will not be able to hear what he is accused of? Is he satisfied with that?

Robin Cook: No, I am not. There are good grounds for having an argument about what the disclosure rules and procedures should be when the matter comes before a court, but we must first get a case to court. If the decisions are taken inside the Home Office, there is little chance of the suspect having an opportunity to dispose of the matter of which he is accused.
	This is not an ad hominem point. If my right hon. Friend were Home Secretary for life, I might be slightly more relaxed about the powers, but he will not be. Other people will become Home Secretary. It is theoretically possible that it may even be someone from another party. [Hon. Members: Oh.] I am seeking to find a point of consensus without becoming controversial. The serious point is that we are giving powers not to my right hon. Friend as an individual, but to his post, and I do not think that they sit readily with his post.
	I said that there were three reasons why my right hon. Friend is to be congratulated on his decision to accept the principle of my amendment. The third is that I worry gravely that the powers, in particular the power of house arrest, could be counterproductive in the fight against terrorism. Over the weekend, we heard of the new plans for the Maze prison now that it is to be demolished. It is, perhaps, appropriate to remember that internment was abolished not so much because of concern about civil liberties, but because it was proving counterproductive in the fight against terrorism. It was much more successful in provoking sympathy for the IRA than it was in assisting the police in combating terrorism.
	Let us be frank. We all know that the control orders are most likely to be applied against citizens of Britain who are British Muslims. Those of us who have been in contact with that community know perfectly well the alienation and disaffection that has been caused among many young British Muslims by the way in which current powers under the prevention of terrorism legislation have been used. We need all the communities of Britain to work with us to ensure that we defeat the common enemy of terrorism, and we need all members of the British society to believe that they are allies in that fight and that none of them is a suspect because they belong to any one particular community.
	My hon. Friend the Member for Birmingham, Selly Oak (Lynne Jones) anticipated my point. I am glad that my right hon. Friend the Home Secretary has accepted the logic of the argument in relation to clause 2, but that argument applies with almost equal force to clause 1. I congratulate him on a bravura performance of stamina at the Dispatch Box. It is perhaps a pity that the Oscar ceremony took place last night and his performance cannot be considered for an award. I feel a certain sense of guilt, in that I tempted him into accepting my amendment to clause 2, thereby creating some of the difficulty in arguments that he has had in relation to clause 1.
	Listening to how the debate unfolded in the hour and a half when my right hon. Friend was at the Dispatch Box, however, it was impossible to avoid the point that the only distinction that could be made was a matter of degree, not a matter of principle. Indeed, he relied not on a qualitative argument, but on a quantitative argument. I am not sure that that adequately justifies adopting a different procedure for the two different forms of control order. Indeed, the restrictions on liberty in clause 1 are severe. They enable the Home Secretary to specify where the citizen will work, to whom the citizen will talk, where the citizen will stay, who visits him there and where he can travel to within the United Kingdom. We are talking not about where he can travel by leaving the UK, but specifically about where he can travel in the UK. Those are very grave restrictions on liberty. My right hon. Friend might be wise in the light of this afternoon's experience to tell the Committee before we conclude our business that he will reflect on the arguments that have been put to him and consider ways in which they can be brought into the text of the Bill before proceedings are completed in both Chambers.

David Winnick: Would it not be useful for the Home Secretary to bear in mind the fact that those of us who recognise the shortcomings and think that such a proposal could be counterproductive, but accept control orders for the reasons that we have explained, nevertheless feel very stronglyno less than Members who are opposed to the measuresthat the matter of who is to be subjected to a control order should be initiated by the court? Clearly, the vast majority of Labour MPs on listening to the debate would certainly agree. If the Home Secretary is to concede, as he must do next door, he should do so earlier and to the House of Commons.

Robin Cook: My hon. Friend makes a perfectly fair point with which I would entirely concur. It is notable that we have now been debating this matter for the past four hours and that, apart from the Minister who has spoken from the Dispatch Box, no Member has put in a favourable word for the material before us.

Rob Marris: Like the Home Secretary, my right hon. Friend is a lay person; I am a lawyer. The Home Secretary seems to be putting forward a lawyer's argument that deprivation of liberty is a technical term that appears in article 5 of the European convention on human rights. However, if my right hon. Friend the Member for Livingston (Mr. Cook) went into a pub in Livingstonor if I went into a pub in Wolverhamptonand said that the Home Secretary had placed restrictions on an individual so that he could not go to work, speak to his wife, or use his mobile phone or computer, and that where he could travel in the United Kingdom was limited, he would find that the average lay person would think that that was deprivation of liberty.

Robin Cook: I suspect that my hon. Friend accurately reflects what might be described as the public house commonsense view of the matter. I would add, though, that I would be cautious about accepting the idea of a lawyer's point of view. In my experience, there is no one single point of view that can be expressed as a lawyer's point of view. Indeed, one can usually find a lawyer to support any possible point of view. I very much doubt whether every lawyer will accept the distinction that we have heard made from the Dispatch Box today, and I would not be at all surprised, should this Bill reach the statute book and be implemented, if we found them arguing in the courts that the restrictions on liberty under clause 1 also require a derogation every bit as much as those under clause 2. I am conscious of the fact that a large number of Members wish to speak, so I shall conclude.
	I mentioned that it has been striking how few voices have been raised in favour of the contents of the measure. One of the main reasons for that is that the places around the world where we find legislation parallel with what we are debating are not comfortable. I heard on BBC radio yesterday the chief of staff of F. W. de Klerk justifying the measure before us. That was not advice that I wished to hear or a source that commended the Bill to me.
	Those of us who have spent much of our political careers condemning countries where it is possible to put citizens under house arrest on the decision of a politician on the basis of secret police evidence have every reason to be concerned about this Bill. I am glad that this afternoon we have been able to take the significant step to remove one of the worst offences of the measure, but I hope that my right hon. Friend the Home Secretary will reflect on what has been said and enable us to go further in order to remove some of the more offensive aspects of the Bill.

Mark Oaten: I do not intend to speak for very long because many Members want to speak. It has become clear from events this afternoon that what we say in this Chamber is not what will matter in the next 48 hours. That is a frustration for many of us.
	It is difficult to decide whether we are debating a set of clauses or a letter. The clauses in front of us are unacceptable. Even though I welcome some of the measures that have been set out in the letter, the letter is also unacceptable. Therefore, regardless of how one interprets any votes laterit will be difficult to do sofor clarity I should say that whether in relation to the clauses or to the new proposals made by the Home Secretary, we will be voting against the measures.
	We debated at length on Second Reading how it was unacceptable for the Home Secretary to give himself so much power to take away the liberties of others. I genuinely welcome his reflection on that and the fact that he has put forward in his letter a different set of proposals. They do not go far enough, but it would be churlish not to acknowledge that. Just as last week he was able to move on the issue of judicial involvement and judicial review, he has made a fundamental leap in recognising that the role of the judge is not to be one of just signing off or reviewing, and that they, rather than politicians, can take the decisions.
	I want to flag up a few concerns about what the Home Secretary has proposed in his letter. If it were possible to table amendments to a letter, we would do so. Let us regard our proposals as a postscript to his letter. We hope that we can address them in more detail in another place and that at some point this evening the Minister will respond to them.
	We have always acknowledged that if a judge were able to take the initial decision, we would have to overcome what I have described as the problem of the Home Secretary getting a call at 2 o'clock in the morning. In his letter, the Home Secretary outlined the way in which he would amend police powers. It is important that we understand more about that process. There is still the critical issue of whether the Home Secretary or the intelligence services would be directing a chief constable and quite how that relationship would work when that call comes through to the Home Secretary. We have acknowledged that, as a mechanism for achieving what we wanta judge decidingthere must be something to fill that gap.
	In the letter, the Home Secretary acknowledges that we will be able to move towards a prima facie case within 24 hours. At the right time of day, that period could be shortened; it may well be possible to get through a court process a great deal faster than that. I see no reason why we should not try to move much closer to a point where that takes place almost as soon as the information is brought forward, instead of setting a limit of 24 hours.

David Davis: I am listening with interest to the hon. Gentleman. I do not think that such a problem exists. If we want to get an injunction in the middle of the night to stop a newspaper publishing something, we can do so. The process of warrantry that covers a great deal of the intrusive actions of our various agencies can be undergone in the middle of the night, and indeed often is. Are we making too much of a problem of this? It can be dealt with by a judge at any point of day or night.

Mark Oaten: I would make two points to the shadow Home Secretary. First, I have acknowledged that the police powers to hold individuals for 14 days may not be acceptable. In relation to those current powers, we would be moving towards a definite charge; clearly, in these circumstances, we would not be doing so. Secondly, if we agreed to many of the amendments, we might be talking about judges who are security vetted and of different types. Therefore, it is unlikely that there would be many of them around at the drop of a hat, as there are for a newspaper libel action. However, I accept the right hon. Gentleman's point that we should try to narrow the gap between the Home Secretary seeking emergency powers and the considering of the prima facie case.
	Another concern, and one at which the Lords will need to look, are the grounds for which a prima facie case can be considered. At the moment, it is suggested that that should be based on reasonable grounds. Even though that would be at a very early stage in the process, we are uncomfortable that the grounds should be reasonable grounds.
	Thirdly, when will consideration be given in that process to prosecution? On many occasions, the Home Secretary has said that he intends to move to prosecution at an early stage, but could we not consider the prima facie case for prosecution? Under the Home Secretary's proposals, when will the consideration whether to prosecute occur? In our judgment, the sooner that matter is addressed in the Bill, the better.
	The Home Secretary's letter is very quiet on the time that it would take to move from the prima facie case to applying for a full control order, and we have received no indication of how long that period would be. A period must clearly be provided to allow cases to be developed, and I would have hoped to receive some indication that we are discussing a not very long period of between seven and 14 days from seeking a prima facie case to moving towards a full control order being applied for and decided by a judge.
	So far, we have discussed helpful steps in the right direction in relation to the powers of the judge and we seek clarity on how those powers will work. However, issues of fundamental principle also exist, and they mean that we are uncomfortable with the direction in which the Government are heading. Evidence is one such key issue and it is not satisfactory that the Government still intend individuals not to be able to see the evidence against them. At the moment, a special advocate can see such evidence, but they cannot necessarily share the information with the defendant.
	There must be a way to allow a defendant to argue about matters of fact in such cases. It would be crazy if an individual had a charge put against them, but they were not allowed to know the information, although they had an alibi. We must be able to work through such matter of fact issues to make sure that a gross miscarriage of justice does not occur simply because certain levels of evidence were not considered.

Alan Beith: May I draw my hon. Friend's attention to the evidence submitted to the Constitutional Affairs Committee by nine of the special advocates, which indicates the difficulty in which special advocates operate? For precisely the reasons that he has just given, the special advocates say that they cannot guarantee to secure justice for the people on whose behalf they are supposed to act. Their participation in the existing SIAC proceedings should not be taken as indicating that they are satisfied that those proceedings are fair.

Mark Oaten: My right hon. Friend has made an excellent point. The SIAC proceedings put not only the defendant but the special advocates in an impossible situation. Without a system to allow the basic facts to be heard on all sides, miscarriages of justice will occur.

Dominic Grieve: I agree entirely with the hon. Gentleman. One of the problems that we face is that the Home Secretary makes concessions on the Bill when he is under pressure, but remains reluctant to allow detailed scrutiny of the entirety of the legislation, which today's Committee will certainly not provide.

Mark Oaten: I could not agree more, but we are where we are. Let us hope that the detail of those issues will be examined in another place and that we can make a useful contribution in Committee.

Vera Baird: The hon. Gentleman is making some good points. I disagree with what the hon. Member for Beaconsfield (Mr. Grieve) has just said because we are discussing not substantive material that will go on in the Bill, but detailed rules of court. I have never understood why one should not know whether an individual has an alibi because one does not know the day on which they were alleged to have done something. If the special advocate knows the gist of the allegation, why should he not agree a series of questions with the judge to be put to the defendant? He would not have to ask, What were you doing on 10 March? He could ask, What were you doing in March?, and do his best from the individual's diaries. Such a process would gradually erode the worst bite of the injustices in the system.

Mark Oaten: The hon. and learned Lady is rightthe situation is not black and white. It cannot be beyond the wit of man and the good will of those involved in the process to create a way to establish issues of fact without giving away sensitive information. When the Bill reaches another place, I hope that the Home Secretary will examine ways to achieve that. I disagree with the hon. and learned Lady in saying that such issues should be dealt with in the Bill. The matters of principle must be addressed in some way in the language of the Bill before my hon. Friends and I can support it.

Alan Beith: The hon. and learned Member for Redcar (Vera Baird) has said that the matter does not need to be dealt with in the Bill, but it is dealt with in the Bill because the schedule gives the Lord Chancellor the power to make rules that the High Court must accept. If   the Lord Chancellor were required to engage in consultation, the schedule even presumes that the consultation in which he engaged before the Bill was passed would count towards it.

Mark Oaten: My right hon. Friend has made an excellent point. These are classic in the Bill issues and they are the bottom line on whether we will support the Bill in the future.

Dominic Grieve: The right hon. Member for Berwick-upon-Tweed (Mr. Beith) has pre-empted my point, but I shall go further: is it not the case that the novelty of the procedures that we are setting up makes it all the more important that we should have some understanding of the court? Ordinarily, when rules of courts are provided by statutory instrument, everybody knows roughly what sort of rules will be introduced, but in this case we do not know because of the complete novelty of the procedure.

Mark Oaten: The shadow Attorney-General has made an excellent point. We are entering into uncharted territory, and because it is uncharted we should at least set down what we understand by it, rather than assuming that the norms of previous engagement will be the norms in these circumstances.

Vera Baird: I shall clarify what I mean. The schedule contains a power, which is not altogether commendable, to make rules of court, but is not that power needed? The power to make rules of court must appear in the Bill, because one cannot not conceivably legislate for every detailed arrangement of the kind that I have suggested to the hon. Gentleman.

Mark Oaten: My position is not a million miles away from that of the hon. and learned Lady, but Liberal Democrat Members cannot support a Bill as an act of faith or on the basis of a statement from the Minister. We must understand how evidence will be heard within the mechanics of the process.
	I want to discuss some other aspects of the Home Secretary's proposals, and I hope that they will be addressed in another place. On the standard of proof, the different clauses contain different standards of proof, but we cannot understand why different standards of proof are necessary throughout the process. It is possible to move towards higher standards of proof throughout the process, particularly if one is dealing with special courts in which one can achieve a standard of proof without revealing sensitive aspects of the evidence, which is difficult in an ordinary court process.
	The Home Secretary took a large number of interventions on his justification for having a different set of rules for the higher and lower control ordersthose that derogate and those that do not. Frankly, he was not convincing on that particular issue. I accept that there is a difference between placing someone under house arrest, tagging them, imposing a curfew, prohibiting who someone can see, or preventing someone from working, but in one way or another all those examples concern losses of liberty. If someone were to tell me with whom I can work, where I can travel and whom I can meet, I would regard it as a gross invasion of my liberty.

Edward Garnier: European jurisprudence accepts that those examples are deprivations of liberty, but the courts in Europe sometimes allow such deprivations on the grounds of proportionality or for the protection of national security. The distinction is not in principle, and it simply concerns what the court will and will not allow.

Mark Oaten: But that was not the Home Secretary's argument. He argued that because one punishment is worse than another, the process of managing that punishment should be different, in which case why do murder and theft both currently go before a court and a judge? The logical conclusion to draw from the Home Secretary's argument is that we should put murder in front of judges, but not bother with theft. Whatever level we are discussing, the principle should be the same whether we are discussing a higher or lower level of taking liberty away.

Malcolm Bruce: Does my hon. Friend share my concern that the Home Secretary went further and said that the difference between non-derogation and derogation was that only he would have all the evidence for non-derogation offences, which implies that people who were less of a threat and would not be detained would go through a more serious breach of justice?

Mark Oaten: There could have been some logic to the Home Secretary's argument if he had presented it the other way round, corresponding to the degree of severity.
	The right hon. Member for Livingston (Mr. Cook) was right to say that this will be a sticking point, not least on the Government Back Benches. It is a pity that before the Bill goes to another place we could not hear from the Home Secretary, who has already made helpful concessions, that he is prepared to keep the door open and consider the issue again. Had that been the case, we would have felt that the debate had served some purpose, instead of such a concession being dragged out of the Government, kicking and screaming, in the House of Lords. Even if that does not become part of the Bill, it will be challenged sooner or later on legal grounds. I hope that the Home Secretary and the Minister will indicate that they are prepared the keep the door open, so that the same system is in place for a higher and a lower control order.

Mark Fisher: I agree with much of what the hon. Gentleman said, but is he not being too meek and modest? We are sent to the House to scrutinise Government legislation. We are not doing that today. We are discussing a statement that the Home Secretary made. The hon. Member for Winchester (Mr. Oaten) says that we may, if we are lucky, be able to chat briefly about the scrutiny of the legislation in the other House, but that is not what we are sent here for. We are sent here to scrutinise and satisfy ourselves that the judgment of the Home Secretary and the Government is correct. We are not doing that with this Bill.

Mark Oaten: The hon. Gentleman makes an excellent point. I am a mild-mannered kind of guy and I find it hard to get worked up about these matters, but if I were worked up about the Bill, I would be extremely unhappy about taking part in a debate knowing that the points that I made would not be voted on tonight because the Committee cannot vote on the real issue. It is ridiculous that we are voting on a set of clauses that could be thrown in the bin. The issue on which we should be voting is a letter, which of course we cannot amend. That is frustrating, but all we can do is send a very strong signal to another place. If Members there do not listen, I hope that when the Bill returns to the House we are given more time and space to make our arguments at that point.

Simon Hughes: First, does my hon. Friend recognise the bizarre paradox that the Government are relying on a House that they constantly criticise for being unrepresentative to do the major scrutiny? Secondly, is not the point that my hon. Friend has made often the best reason why all sorts of control orders should be subject to the same process? If people are kept in their house, not allowed to go to certain parts of the country and so on, are not those just the people who are more likely to be martyrs to the cause if they have not had a chance to argue their case and show why they should not be subject to that decision? We are creating more and more people who are likely to be antagonistic to the Government and to the very liberties that we want to uphold.

Mark Oaten: My hon. Friend is right. Having a good system of justice in place is important in its own right, but it has the further important benefit that it does not make people feel that the system is working against them.
	In conclusion, we have reluctantly accepted the need for control orders. We have acknowledged that there is a gapa procedural problemand a way forward must be found. I have acknowledged that the Home Secretary has taken some steps in the right direction, but they are tiny steps, and big leaps are needed in the future for the Liberal Democrats to support the Bill. We will need clarification on whether there is to be a two-tier system of derogation and non-derogation orders. We will need to see a proper system that allows evidence to be heard along the lines that we have discussed, so that the issues of fact can be dealt with. We will need convincing that the Government are serious about considering better standards of proof. Changes are needed to the legislation on acts preparatory to terrorism so that charges can be brought against individuals. There is a long way to go and at this stage we cannot support the Bill, letter, clause or whatever we are debating this evening.

Clive Soley: I hope not to detain the Committee for long. Having been involved in debates on the prevention of terrorism for about 25 years, I feel that I have built up some knowledge of the subject. One of the few encouraging aspects of the present situation is that we seem to be much more concerned about the legislation than we were before, when the Liberals and the Conservatives would often vote together to keep the prevention of terrorism Act on the statute book.
	I want to make one point about the past, and I make it to the former Home Secretary, the right hon. and learned Member for Rushcliffe (Mr. Clarke) as well. Successive Governments, Labour and Tory, renewed legislation in the House, often in overnight debates, and they did so at times when we were locking up several thousand people in internment in a ship in Belfast and elsewhere in Northern Ireland. We excluded people from one part of the United Kingdom to another, again   without judicial intervention, under successive Governments throughout that time.
	What we are doing tonight is not essentially different. I do not use that as an argument for supporting the Bill. My right hon. Friend the Member for Livingston (Mr. Cook) deployed one of the arguments that I used to usethat we were locking up many innocent people and, in doing so, losing support. But today there is a difference, and things have changed. I am pleased to say that the present situation is not nearly as bad as it was then. In the worst year of the 1980s, we locked up close to 6,000 people, of whom fewer than 1 per cent. were put on trial for anything to do with terrorism. The numbers now are far smaller, and the way in which the powers are used is a credit to the police. If they were used as they   were in the past, I would be appalled at the consequences, particularly for the Islamic population of Britain, who tend to be in the front line on this matter.
	I must say this to the Committee, and I say it carefully: I agree with the Home Secretary that the threat from terrorism is fundamentally different. That does not mean that we should conclude that what we are doing tonight is good. I shall return to that. The threat is fundamentally different, not only for the reasons given by the Home Secretary and others about suicide attacks and so on, but because the problem is so great when a terrorist organisation seeks to kill the largest number possible. Kofi Annan made a very good speech on the subject in London, but unfortunately he made it on the same day as Prince Charles announced his engagement to Camilla, so it got no mention in the press at all. He spoke about the threat of an attack on London, the numbers involved and the impact on the world economy if weapons of mass destruction were used. It was an important speech. He also spoke of the United Nations being a target for those organisations, as people who read the transcripts from al-Jazeera and other stations will know. The problem is fundamentally different.
	My issue with the Bill is the same as everyone else's. I do not believe that anyone in the House, including the Home Secretary, is happy about taking such powers. I propose a slightly different way forward. If the amendments being discussed are taken a little further, they will apparently satisfy the Liberals and may satisfy the Conservatives. We should not be content with that. We cannot continue with a situation that has gone on for 20 or 30 years, whereby we try to deal with terrorism in a way that is not suited to the British judicial system. That was the point of my intervention on the hon. Member for Beaconsfield (Mr. Grieve).
	Let me make it clear that I do not like what the French do, but it is important to understand that the French system is not the only one in Europe. Importantly, the Europeans deal with terrorism by locking people up for long periods without putting them on trial straight away, but they have a judicial system for doing that. The reason, as I understand itI am not a lawyeris that the inquisitorial system allows them to investigate the possibility of proceeding with a case, whereas the British system, which is adversarial, requires two people to be put up, one on either side, which leads to the very problem that my hon. and learned Friend the Member for Redcar (Vera Baird) expressed so powerfullyit makes it impossible to take evidence in the normal way in a British court. However we dress this up, we will not be able to do that.
	I have great confidence in the Home Secretary, who really does work hard on these issues to move them forward. That is one of the reasons why I will support him tonight. I also think that we need to do something because the threat is very severe. However, I do not want to leave it there. We recognise that we have to do something for the present, but we cannot continue to legislate on terrorism in this way, because we will end up going round this track over and over again. I have heard many of today's arguments before in the past 20 or 30 years. I fear that what will happen is what happened during that period, when the prevention of terrorism Act was renewed every year or every few years and the same debates took place over the same concerns. We must not fall into that trap.
	I ask the Home Secretary to take the lead in bringing together the political parties represented here to consider a long-term solution to the problem. We should bear it in mind that the United Nations is now recommending that there be an international definition of terrorism. That proposal appeared in the high level panel's report in January and is likely to be accepted. It is also suggesting that it should be dealt with by the International Criminal Court or considered as a crime against humanity. There is potential in those areas.
	We cannot go on with the traditional British way of doing this. It has not worked very well in the past, and it is satisfying no one, including, at present, members of the Government. I should like us to find a way forward and we can do that only if the Government and the major Opposition parties work together to consider our adopting, as I have suggested, a system along the European lines whereby for the very narrow area of terrorism we have an inquisitorial system that allows evidence to be considered before a court. I do not want Britain to have an inquisitorial system generallyit has many failings, as the hon. Member for Beaconsfield saidbut we kid ourselves if we think that the common law system provides an answer to the problem that lies at the heart of the Government's difficulties: that is, that the current British system has no way of dealing with a situation where there is enough information on an individual, either from this country or from overseas, to suggest that they might do something that will cost hundreds, if not thousands of lives.
	It is that serious and I ask that we try to find a way of producing a longer-term answer than this measure. For the moment, I will vote for it in the hope that the Home Secretary will continue to make concessions and to consider other methods, but even if he makes all the concessions that the Conservatives and the Liberals want, I will remain deeply troubled by this legislation. We cannot leave it here. We have not come up with a solution to this problem in the past 20 or 30 years and we need to take a long, hard look at the way in which we approach it.

Kenneth Clarke: I agree with some of the reservations expressed by the hon. Member for Ealing, Acton and Shepherd's Bush (Mr. Soley), but I hope that he does not end up simply voting for what we have got because he thinks that it is absolutely necessary. It is crucial that we spend the next few days or weekshowever long we havetrying to put adequate precautions into this legislation. I agree with him that the problem of how we deal with protecting the public against terrorism while protecting the essential values of our society and the freedom of the citizen is a critical matter to which we will have to return.
	The Home Secretary began his appeal to the Committee by reminding us of the extremely serious threat that we face from terrorists in this country and stating that there were some cases that could not be proceeded with by an ordinary criminal prosecution in the ordinary process of the courts. Last week, he implied that many of his critics did not accept either of those points, so for the avoidance of doubt I should say that I agree strongly with both of them. We obviously face a very imminent terrorist threat. It is the duty of the Home Secretary to organise the defence of the country against such threats, and one cannot proceed by an ordinary trial in all cases. But there I pause. If we accept all that, and accept that we have to deal with it, we must make it clear that we must not allow those arguments to induce us to agree to things that we would regret upon careful consideration and which damage our society at the same time as they protect it.
	We have lived with the terrorist threat for most of the past 20 or 30 years. To be fair, I would be prepared to concede that it has probably got slightly worse, but only because its practitioners now include people who will commit suicide themselves, whereas at least the terrorists of the IRA and the Angry Brigade tried to escape from the scene of the crime. Nevertheless, we have had to protect this country against many dreadful terrorist outragesthey were no small-scale incidents. In the time that I have been in this House, there has been a bomb in Westminster Hall. Colleagues and Members of this House have been killed by terrorists. We have seen big spectaculars. We can argue about who carried out particular attacks, but there is no doubt that Irish terrorist bombs killed a lot of young people in a packed space in a pub in Birmingham and a lot of people in a pub in Guildford. There have been the outrages at the Old Bailey and the Grand hotel, Brighton. Serious terrorism is not new to this countryit is not something of which we first became aware after 9/11 in the United States, although that outrage was even worse than anything that we had experienced.
	As a result, we have sought to take precautions. The danger is that we will be tempted to keep going ever further out of a sense of fear and a spirit of revenge against those who perpetrated the last outrage. Fear is no guide to judgment whatsoever. The Home Secretary was not doing it today, but whenever I see, as I sometimes do, the Government resorting to trying to whip up fear of terrorism to take us into measures that we would not otherwise contemplate, we should all beware of going down that path.
	I entirely accept that there are occasions on which one cannot have an ordinary prosecutionfor example, where one is not quite sure what the man has done, let alone able to prove the crime that he has committed, or where one is not quite sure what he is planning, but has very good reason to believe that he is planning some major outrage and has to protect against it. There are also cases where one cannot have a jury because it will be intimidated and threatened, where one cannot let the man see witnesses because they will be intimidated and threatened, and where one cannot let the accused person see all the evidence because, if one has got the right man, he will discover the one thing that he wants to knowexactly how one found out what he was planning, which would be of great assistance thereafter.
	I recognise all those difficulties, which we have had to face in the past. The hon. Member for Ealing, Acton and Shepherd's Bush was, again, right to say that we have been doing this for 20 years. When I was Home Secretary, and when the worst had passed and we were not interning thousands of people, the Labour party had the present Prime Minister as its shadow home affairs spokesman. I seem to recallI do not think that he ducked out of itthat he led for his party in its vehement objection every year to the renewal of the prevention of terrorism Act on the grounds that exclusion orders were non-judicial, that they had no evidence behind them and that we had a draconian security process.
	I mention that not in order to turn this into a partisan debatewhich the Home Secretary had stopped doing, although he was obviously doing it in his public performances last weekbut to remind the Committee how matters can slip and where we can be taken if every time a Government come back to this House with prevention of terrorism measures we are persuaded by the exigencies of the moment to give up yet one more protection and to go one step further. That is why I decided, when I heard about this Bill and when the Home Secretary made his statement, that we were taking a big leap by suddenly giving the Home Secretarya Minister; a member of the Executivethe power to deprive a British citizen of his liberty and not making that a judicial action by an independent judge or member of the judiciary through some constrained judicial process. I am glad to say that we seem to be making some progress in pulling back from that, but we have to pull back a whole lot further, because this is a very important step.
	I am tempted to say that, looking back over the years, some of the silliest pieces of advice that I was ever given urged me to do certain things on the grounds of security, protection of the national interest and prevention of terrorism. The second most silly have been on the grounds of health and safety: the blood is made to chill in the face of what might happen if one does not take some essential step. One has to count to 10 and say that the step is basically stupid, illiberal, unacceptable and disproportionate and that, if this society does not stop giving and receiving such advice, we must fear where we end up.

Tam Dalyell: The right hon. and learned Gentleman has occupied the important position of Home Secretary. Does he have any reflections on the fallibility or infallibility of advice from security services?

Kenneth Clarke: It is a convention of politics that Ministers always heap praise on their officials, which they do not always reciprocate. In particular, it is a convention that praise is heaped on the security services by all and sundry. I accept that we have excellent security servicesthey are essential and do a valuable job. However, I will go no further than to say that I do not believe that they are infallible. They are virtually unaccountable now, even though attempts are made to make them accountable.
	One of my predecessors, the late Roy Jenkins, strongly advised me early in my term of office to keep an eye on what those people were doing, because I would never find out what they were really up to. I will say no more on that. Any Home Secretary who uncritically and unquestioningly takes the advice of the security services runs a risk on those occasional moments when they make a mistake or advise him to do something foolish.
	There is a danger in our system of politics, which I have seen, that senior politicians and senior officials who have access to an exciting and hidden world of security will get carried away with their excitement. They can sometimes become vulnerable to advice to do things that, with hindsight, are not altogether wise. However, if I am not careful, that will get me back into discussions that we had last year about a war with the right hon. Member for Livingston (Mr. Cook)the former Foreign Secretarywho is sitting next to the hon. Member for Linlithgow (Mr. Dalyell), and others. However, the idea that the public often havethat if the security services and the police demand something, it is unpatriotic for the House of Commons to refuse itwould be dangerous for us to accept.
	I am worried about what we might slip into. My concerns are up to date and pertinent. Let us remember the position of the people who were in Belmarsh. The previous Home Secretary was completely satisfiedand, let us face it, so was the House of Commons, because we did not really make a challengethat those people were so dangerous that they had to be incarcerated in the most secure prison that could be found in the United Kingdom for an indefinite period. Where are we now? The same people are to be let out and not pursued under the legislation. It is open to us to say that perhaps the original judgment cannot have been made as confidently as we were led to believe it was made at the time. Let us beware allowing misjudgments to enter into our deliberations.
	Let us not be carried away by the concessions that are being hinted at and sketched out in exciting terms. I express my genuine gratitude to the Home Secretary for moving. He has come forward with explanations of judicial process, and I agree with the former Foreign Secretary, the right hon. Member for Livingston that the Home Secretary laid on a quite remarkable performance of an hour and a half, taking on all-comers in his usual combative way, wading through the rather thin paragraphs of his letter and trying to persuade hon. Members that he was on the way to an altogether more civil liberties-conscious solution. I am not wholly persuaded, however, that that will take us to where we want to go, unless we are careful.
	The Home Secretary did not come to the House because he had genuinely changed his mind. He made it clear that he preferred the position from which he had started. He came here because it dawned on him and his colleagues that they were not going to get their Bill if they did not change it. Last week, I could not understand why they had not realised that. Most people, when they are running at a brick wall, eventually stop. I expressed the opinion in various interviews that the Government did not have the faintest chance of getting the principle through both Houses. The Home Secretary has now seen that. That is what brought him here, but he did not come in a forthcoming mood.
	The Home Secretary followed the unfortunate Minister for Crime Reduction, Policing and Community Safety, who was put up to defend the ridiculous programme motion. She knew that the Home Secretary was going to change the Bill. She knew that the letter was being distributedat that stage to favoured recipients, but eventually to us all. She also knew that the whole Bill would be rewritten in the House of Lords. However, she explained that we would have only a limited timewas it seven hours?to discuss the whole shooting match, including Committee, Report and Third Reading, before the Bill went off to the House of Lords, when we would discover exactly what it was going to say.
	The Minister gave no reason for that brevity. She did not try to argue, because everything had been decided. To be fair to hershe is still here to reply to this debateshe had no discretion to alter anything. The Leader of House, who could have done something, was sitting 50 yd away, refusing to come and take part in the shambles that had broken out on the Floor about the business of the House, which he had organised. The Home Secretary was lurking behind the Chamber.

Sylvia Heal: Order. The right hon. and learned Gentleman is going rather wide of the debate.

Kenneth Clarke: I was touching on the spirit of the concessions. However, I shall return to the Home Secretary's description of the judicial process. I was merely indicating that he did not seem to be an altogether willing and cheerful bearer of good news to the House. We must consider his proposals with particular care.
	The Home Secretary made the curious division of orders into two levels: the deprivation of liberty and the restraint of liberty. That struck me as the nearest thing to legal gobbledegook that I have heard in the House since last week, when we first embarked on the whole debate. He plainly did not want to change his proposals, but he realised that he had to for the most serious orders, so they would have a judicial process, although he would not do for the less serious orders, even though both involved exactly the same deprivation of liberty and exactly the same judgment.
	It was explained to us why the serious orders could, to a certain extent, be decided by a judgeI will return to thatbut the less serious ones could not. That is set out in the anonymous document from the Home Office that we received just as we began. The relevant paragraph on the second page, headed Why should the Secretary of State make non-derogating control orders?, says:
	Control orders are preventative orders. They are designed to prevent future atrocities from happeningthey are not designed to punish a person for past events.
	That is true of all control orders. The serious ones are not based on any crime or past event that one is going to prove, but are preventive. Everything that follows in the document is applicable to all control orders, of all severity. The only reason the Home Secretary has made a concession is because he thinks that the House will get even more excited about locking somebody up than we will about taking their freedom of movement or their mobile phone. He wants to keep the lesser orders to himself.
	I suspect that the real reason why the Government have from the start resisted involving a judge at all was because of the obvious objection: that judges have the habit of being more critical and letting people out. There are cases that are not possible to get past a judge. That is why the Government want to avoid a judge; otherwise, it is difficult to see the different judgment that divides the orders horizontally, as it were.
	The description of the role given in the document concludes with a sentence that the Home Secretary plainly still believes:
	This is a role which the Secretary of State is best placed to carry out rather than the courts.
	I simply do not understand that. The intellectual attainment of the average judge is roughly equivalent to that of the average Secretary of State, if not greater. The mastery of detail of the average holder of judicial office is at least equal to that of most people who hold great offices of state. Such decisions are of course a difficult matter of judgment and it is difficult to apply the ordinary burden of proof. However, judges have to deal with matters of judgment all the timesometimes quite fine and difficult ones. Judges assess risk and what is necessary, weighing the public interest on the one hand against the need to protect the liberty of the individual on the other.
	Judges will be more conscious of the overriding national interest in its fullest sense, and will be inclined to be a bit more liberal and libertarian than a Home Secretary relying on the advice of the security services. Let us not deceive ourselvesthat is why it is argued that the Secretary of State is more suited to the role than a judge.
	My last point deals with determining how we should look at the proposals on cases where a judge has been let in, when we get them. I am not sure how far the judge will be allowed by the proposals to supplant the Home Secretary to any effective extent. Only in the more serious cases is it suggested that the Home Secretary will have to go before a judge and apply for an order. That was always what I argued for: it is the key to the whole Bill. However, it seems that this will involve something like the committal proceedings of the kind that, in cases of ordinary serious crime, take placeor used to; it very rarely happens in that way nowbefore a magistrate prior to the committal to a Crown court. Under the new proposal, subject to the rather weak test set out in the first clause of the Bill, a person will go before the judge in the committal proceedings, which will be ex partethat means that the other side will not be presentin a closed hearing. All that the Home Secretary will have to show to the judge is that there is a case to answer to go on to a full tribunal. Eventually, there will be an inter partes hearing at which the whole thing will be sorted out. I hope that, when we get the wording of the Bill, it will be absolutely clear that the decision to intern will be taken by the judgefirst at the preliminary stage, and finally at the inter partes hearingnot only after looking at process and at whether the Home Secretary has behaved unreasonably, but after considering the case in the round and being satisfied at both stages that an overriding threat to the national interest is involved, and that the decision to incarcerate or confine the person will be proportionate to the risk that is seriously feared to be about to happen. That is not clear at the moment.
	There are two other things that the judge should do. Prosecution is to be preferred in all these cases, and there is always a danger that people might not be prosecuted because they might be acquitted. Even the first judge at the committal hearing should have to be persuaded that there is a good argument for the case not following the ordinary process. New clause 6 provides that it should be the duty of that first judge to be satisfied that there is a good reason why the evidenceor at least a great deal of itshould not be put before an ordinary process.
	The second thing that a judge should decide is how much of the information should be shared not only with the advocate who is going to challenge the evidence in the next court, but with the defendant himself. I shall not repeat what the hon. and learned Member for Redcar (Vera Baird) said earlier, but she made an extremely good point in this regard. The judge listening to the first hearing could make orders regarding the conduct of the trial. There is no reason why the Home Secretary and his security people should not have to sit down with that judge and decide how much information should be given to the defendantand, therefore, his advocateby way of a broad description of what he is accused of. They might not be able to tell him what the evidence isthey certainly would not be able to tell him how they got itbut he should be allowed to know that he stands accused of colluding with a particular person, planning a particular escapade, or whatever the allegation happened to be. All that needs to be set out.
	I shall not go on because, as I have already said, we are discussing the Bill even though we do not know what it will finally look like. There are far more details to come. When they are drafted, the clauses on these provisions will be quite complex. It is laughable that we are all sitting here waiting for the true Bill to be drawn up and presented to the House of Lords. We all know that the Minister of State will again be put up to tell us that we have only an hour and a half, or two hours, in which to consider the whole shooting match when the Bill comes back to us. This House will be used as a cipher in this way until, one day, it stands up and rejects a programme motion tabled by some Government or another. These motions get more draconian year by year, and the one that we debated earlieron the most serious Bill that the House has had to consider during the lifetime of this Parliamentis one of the silliest that we have ever had. If we are offered two hours in which to consider the Lords amendments, I shall invite the House to reject the programme motion involved, although that will be in the hands of Labour Members. The Government would not fall if the motion were rejected, and if they knew in advance that we were going to reject it, we might get a proper programme motion. There are ways round this problem, and we must have more sensible discussions in future.
	Meanwhile, I shall vote for amendment No. 4 if it is pressed to a vote. All that we have is the Bill before us and a selection of amendments. At least amendment No. 4 asserts that we want a proper judicial process. We might as well send the Bill to the House of Lords in a form that slightly more closely represents the true feeling of the vast majority of the people in this House. The original Bill was a disaster, and we might as well make a few changes to it before we send it off to the Lords, where they will start all over again.

Clive Betts: Many hon. Members have expressed concerns about control orders, so I shall not go into them further. I accept the Home Secretary's powerful case that we face a unique threat from terrorism, although there are degrees of difference because of the potential scale of the outrages that we might face. As the right hon. and learned Member for Rushcliffe (Mr. Clarke) has just said, the terrorists are prepared to kill themselves and are not looking for an exit strategy. That presents us with a different problem from any that we have faced in the past.
	I would say to my right hon. Friend the Home Secretary that many of us are prepared to go down the road to control orders, provided that the safeguard of an independent judge making the decision in each case exists. That is fundamental to the way I feel about this issue. I welcome my right hon. Friend's concessions. He has listened carefully to the points that have been put to him about derogating control orders, as we can see from the fact that he is now prepared to have a judge consider such a case in the first instance and quickly thereafter hear the whole case at an inter partes hearing. I welcome that change, which has virtually satisfied me on that aspect of the Bill.
	However, although the Home Secretary gave a considerable performance in taking so many interventions earlier, he completely failed to convince me that the same process that he now proposes for derogating control orders should not also be used for non-derogating control orders. I simply did not understand his arguments on that issue. The debate would have been greatly shortened if he had been prepared to make a concession on that point as well.
	We have heard many arguments today about the difference between the restriction of liberty and the deprivation of liberty. As I understand it, the essence of the difference is that with non-derogating control orders, certain restrictions drawn from the list in clause 1(3) will be deemed appropriate to certain individuals. However, if that list grows, we could reach a point at which the restrictions on an individual could constitute a deprivation of their liberty, and the non-derogating order could become a derogating order. A completely different process would then be used. It is difficult to justify a difference of degreethat is what it would becomewhen some restrictions would be imposed under a non-derogating order, but if a few more were imposed, it would become a derogating order. The processes under which the orders would be considered would be completely different. The Home Secretary failed to justify that in his speech.

Mark Fisher: I am impressed by the fact that my hon. Friend is making exactly the same point as that made by the right hon. and learned Member for Rushcliffe (Mr. Clarke) a moment ago. The right hon. and learned Gentleman suggested that the changes had resulted from the Home Secretary recognising that he was running into a brick wall in the House last week. Is not my hon. Friend describing this week's brick wall? It is inevitable that the Home Secretary will have to concede this point and recognise that there is no distinction between derogating and non-derogating control orders. Surely it would therefore be better for him to do so in this Committee now, because he is going to lose this argument in the other place. It would be more satisfactory if we had a chance to scrutinise any new proposals that he is going to make.

Clive Betts: I very much agree with my hon. Friend. It might not be inevitablealthough it probably isthat changes will be made in the other place, and I hope that the Home Secretary will listen to his Labour colleagues on this point, for reasons that I shall come to, and on which I hope that he will reflect.
	The Home Secretary has in some ways worsened the situation, in that the two processes involved in making the orders will now be even wider apart than they are in the Bill as it stands. Not only do we have the complete difference in process that was there before, involving a different burden of proofreasonable suspicion in the case of non-derogating orders, and balance of probability in the case of derogating ordersbut there is now a second difference. A judge will now be brought in at the very beginning in the case of a derogating order. Although the note that has been circulated on non-derogating orders says that there is a role for the judiciary on appeal in such cases, and the Home Secretary now says that that should happen within a given period of time, it would of course happen on judicial review.
	A judge dealing with non-derogating orders will never reach the point of deciding at first instance whether the orders are correct and whether the proposed measures are reasonable. All that a judge can do at judicial review is decide whether the Home Secretary has behaved, at first instance, in a reasonable wayreasonable in terms of both process and decision following examination of the facts. The process will involve second-guessing the Home Secretary's decision all the time. That is the fundamental difference between the ways in which the two kinds of order, and the judicial roles, will operate.
	The existence of two processes involving orders that are very similar, and in some instances different only in terms of degree, is a recipe for potential disaster. What if the Home Secretary says that he believes, in a certain case, that the balance of measures under clause 1(3) makes a derogating order necessary? What if that is subjected to due process and reaches the judges, and the judges decide that the balance of measures is wrong? What if they decide that fewer restrictions are appropriate in that specific case? What if that smaller number of measures then becomes the subject of a non-derogating rather than a derogating order? The court will not be able to deal with a non-derogating order. All that the court can do is decide on judicial review whether the Home Secretary was right to impose a non-derogating orderand in this instance the Home Secretary will not have done so. His initial view will have been that a derogating order was required.
	I give that example because I think that the existence of two different processes aimed at addressing very similar issues could lead to complications. I hope that the Home Secretary will take it seriously. It is not a tricky example dreamt up for the occasion, but an example of something that could happen, which could slow down and interfere with the process that we are trying to bring about.
	The Home Secretary has clearly stated that his most important duty is to ensure the security of the nation, and that that is his paramount concern. Today he has presented proposals to change the way in which derogated orders are made, and to involve a judge from the outset. Presumably he now believes that that is appropriate. Presumably he does not believe that it weakens the legislation or the fight against terrorism in any way. Presumably he would not recommend such an arrangement if he believed that it would do that. If involving a judge in derogating orders at first instance will not weaken the fight against terrorism, why should it weaken the fight against terrorism to involve a judge at first instance in non-derogating orders?
	If my right hon. Friend cannot convince me on that point, I will find it very difficult to support himand I think that that applies to other Labour Members, too. I simply do not see why involving a judge would weaken the legislation. I believe that it would provide the independent scrutiny that many of us want, and would enable us to vote for the Bill.

Edward Garnier: I agree with the last point made by the hon. Member for Sheffield, Attercliffe (Mr. Betts). Before that, however, we heard an important speech from my right hon. and learned Friend the Member for Rushcliffe (Mr. Clarke), who in the space of 15 or 20 minutes produced a pretty good criticism of the measure before usor, at any rate, the measure that we think is before us.
	These proceedings are, of course, entirely absurd. I accept that the Home Secretary came here to do his best to explain his change of mind, or at least a change in the expression of his policy, but I am afraid that that is not good enough. Nor is it good enough for the Minister of State, during her brief speech on the guillotine motion, to fail to mention the Home Secretary's letter to the shadow Home Secretary. Surely it was germane to that debate that the Home Secretary was about to refer in the Chamber to a letter that none of us had seen.
	Having said that, I should add that it is not always best to choose the easiest route. The easiest route is, of course, that chosen by the Home Secretarylegislating by letter and hoping that no one will noticebut that simply will not do. It also produces a general lack of public consent for legislation that the House will pass.
	We all have to put up with legislation of whose consequences we disapprove. The Government pass tax laws of which those affected do not necessarily approve; they pass all sorts of laws of which we do not necessarily approve. Criminals in the dock clearly disapprove of some of the laws with which they have become entangled. Nevertheless, all of uswhether or not we support the Government of the dayconsent to legislation, because we broadly approve of the procedures by which it is passed. There is a general unspoken consent to the system.
	That consent is important. Unless people respect the process whereby the law is made, they will not respect the law and will not agree to be bound by it. That is what leads to civil disobedience and a breakdown in our democratic system. I am worried about what will happen if the Home Secretary's proposals, as they appear in the Bill, are passed. What, for goodness sake, are we here to discuss in Committee? We are here to discuss a page and a half of amendments, as they appear on the selection list43 pages in the amendment paper. We discover from a letter, however, that the Home Secretary has other plans: he wants the unelected House to have first sight of his new version of the Bill. Why did he make that speech here in Committee? He should have made it on Second Readinga new Second Reading. What he has proposed, after all, is a fundamental reconstruction of his Bill and a complete change of policy.
	I realise that in many instances it is inappropriate for everyone to see everything. I have not been involved in an espionage case at the Old Bailey, or in a case in which members of the Security Service have approached the judge with the aim of obtaining a public interest immunity certificate to prevent the defendant or his lawyers from seeing various details of the Crown's case. That happens, however. In espionage cases tried at the Old Bailey, and, no doubt, other important courts, part of the process may take place in camera so that public and press are excluded, or parts of the Crown's case are withheld from the defence. That is not wholly satisfactory, but so that some form of justice that is broadly acceptable can be achieved, the courts permit it, and Parliament has permitted the courts to permit it.
	Here, the circumstances are rather different. I have attempted to intervene on the Home Secretary repeatedly to say that his system of legislating by letter is entirely inadequate, but let us consider what he is trying to do. He is telling the Committee that the arrangements for derogated control orders should be different from those for non-derogated control orders. He says that derogated orders should be given the benefit of judicial intervention. He is prepared to go ex parte to a judge, or at least get his representatives to do so, and ask for a quick assessment of whether there is a case for an interim order pending an inter partes hearing at which the Home Secretary's representatives, and, perhaps those of the respondent, will be entitled to appear and present their arguments before the judge.
	It may well be that, for reasons of national security or for other reasons, the defence will not be allowed to see all that the judge sees. The judge himself may not be told all that the Home Secretary knows. Butif we set aside our initial disapproval of control ordersunder the derogated process that we are told will be introduced through legislation by epistle, there will at least be some degree of judicial oversight. What puzzles me, and what has puzzled other Members this afternoon, is that the Home Secretary seems to make a distinction that does not exista distinction between the inconvenience caused to the respondent by a derogating order and the inconvenience caused to him by a non-derogating order.
	Non-derogating orders are not confined to the categories set out in clause 1(3). If one goes through the list there, one sees some that may be capable of being non-derogating and some for which, clearly, derogation could be required. However, one is given no guidance in the Secretary of State's speech, his letter or the note that has appeared in the Vote Office which of the control orders in subsection (3) are likely to be non-derogated, which are likely to be derogated and which of those that are non-derogated are, when combined with others, likely to bring them into the category of derogated.
	We are not given much comfort. Subsection (3) begins:
	The obligations that may be imposed by a control order on the controlled person include, in particular
	paragraphs (a) to (o)but there may be a host of other forms of control order that the Home Secretary has not condescended to tell us about in the Bill, in the schedule, in his letter or in his note. We are left to guess about those. He may have some other ideas that he does not wish to reveal to us today about what could constitute a possible control order.
	Just because something is in clause 1 does not mean to say that it is bound to be a non-derogatable order. I think that I heard the right hon. Member for Livingston (Mr. Cook) claim that only orders under clause 2 would require a derogation from the convention. The implication of his remarks was that those set out in clause 1(3) would not. That is not what the Bill says. The Bill says that the Home Secretary is to be given power to derogate from the convention under clause 2, but in doing that and in finding it necessary to derogate from the convention, he can also draw into his order some, all or many of the powers to be found in subsection (3) of clause 1. Therefore, we should not be fooled into thinking that the sorts of control orders that will require derogation are more heinous or more restrictive of human rights and civil liberties than those that are to be found in clause 1(3). There is a massive absence of clarity both in the process by which these things are to be decided and in the way in which the Bill sets them out.
	Take, for example, clause 1(8):
	For the purposes of this Act involvement in terrorism-related activity is any one or more of the following
	(a) the commission, preparation or instigation of acts of terrorism,
	which is fair enough,
	(b) conduct which facilitates the commission, preparation or instigation of such acts, or which is intended to do so,
	which is probably fair enough, and
	(c) conduct which gives encouragement to the commission, preparation or instigation of such acts, or which is intended to do so.
	The making of a speech by a republican Member of Parliament in this Chamber in support of something that the IRA has done or intended to do during any given period could be seen as
	conduct which gives encouragement to the commission . . . of such acts.
	What are those acts? The subsection states that
	for the purposes of this subsection it is immaterial whether the acts of terrorism in question are specific acts of terrorism or acts of terrorism generally.
	Therefore, if I were to stand up and speak for the downtrodden masses of some minority in some far-flung country, would I be accused of conduct that supports or assists individuals who are involved in general acts of terrorism? It is simply extraordinary that the Home Secretary should come forward with this sort of legislation.
	It seems that if we are to get any clarity about the Government's intentions and the content of the Government's policy, we need to scrap this whole proceeding and start again. It is not good enough for the Home Secretary or his junior Minister to come into this Committee to advocate by letter and by a note to be found in the Vote Office massive changes to the Bill and the policy behind it. Nor is it apt, with such legislation, for a Home Secretary to rely on the House of Lords to be the first recipient of his properly drafted proposal. It must be the case, since the junior Minister must have known about the letter but did not tell us about it, that the Home Secretary has in his room the drafted amendments that he wishes to make to the Bill, but which will be introduced only in the House of Lords. They are in existence, I have no doubt. If they are not, no doubt they will be whipped off some computer between now and the close of business tonight, so that they are ready for the House of Lords tomorrow. It is unreasonable to expect the public to consent to such legislation, whether they approve or disapprove of the behaviour of the people whom the Bill seeks to catch. It is unreasonable to go about changing the law in this way.
	My right hon. and learned Friend the Member for Rushcliffe said far more concisely and with far greater power of oratory and experience what I would like to say on this matter. I hope that those who have a choice, particularly those in the House of Lords, will, when they pick up Hansard, remember to read what he said, even if they do not read what I said, and bear in mind what the shadow Home Secretary said in his answer to the statement by the Home Secretary at the beginning of this process in the early part of last week.
	This is a black day for Parliament. If it allows itself to be trodden on by a Government who do this, we might as well all pack up and not worry about the rights of anyone, be they suspected of terrorism or not.

Sally Keeble: I am pleased to have a chance to take part in the debate, as I have some questions that I want answered about how this process would work.
	I welcome the letter, although I regret the procedure that it has plunged us into. It would have been important to see what I imagine will be a long amendment or series of amendments, which should have been debated here. We should have been able to see them, so that we at least knew what we were dealing with. As my right hon. Friend the Member for Livingston (Mr. Cook) said, for many of us, it was our opposition to these types of regimes and measures that got us into politics in the first place. It is not helped when some of us object to the way in which the other place is constituted and feel strongly that, for reasons of democratic accountability, those matters should have been debated here.
	Having said that, the letter takes forward some of my concerns about striking a balance. My constituents and, I imagine, quite a number of others are concerned to see security weighed against issues about their right to live free from interference from an authoritarian state. Some people may regard the civil liberties arguments as secondary, but when one has lived in an authoritarian state, as I have, one is as concerned about the operation of the security police as one is sometimes about criminals. It is no light matter, and we must pay careful attention to both sides.
	On Second Reading, I intervened on my right hon. Friend the Home Secretary on one of the issues that concerned me. There seemed to be quite a muddle in clause 1, with a wide range of powers to deal with a wide range of activities, without the clarity that we would expect for certain activities leading to certain actions by the state carrying certain penalties. Setting out two distinct penalties and two distinct procedures has provided some clarity.
	Let me turn to an issue that I hope will be dealt with in the wind-up. It appears that we still have two different levels of proof: reasonable suspicion and the balance of probabilities. It seems strange that different levels of proof are required irrespective of the activities in which such people might have been engaged. If we are to have two penalties, two procedures and two burdens of proof, they should attach to the different levels of activity, which clause 1 also mentions.
	Paragraphs (a) to (d) of clause 1(8) provide for a wide range of activities to which such orders could be attached. I hope that the Government will explain which procedure is likely to attach to which activity, and with what levels of burden of proof. Putting someone under house arrest should be considered only in respect of more substantive and serious activities, such as the commission or preparation of an act of terrorism, or conduct that helps somebody so to act. Alternatively, a lesser sanction such as the ordinary control order might attach to assisting in the commission of such acts. Perhaps the Government will also clarify whether a different burden of proof will attach to different levels of activity. I am not happy at the prospect of the Bill's going to the Lordsassuming that it is given a Third Readingwith confusion remaining as to how the new provisions will be put into effect. Our constituents will be watching to see in what ways they might trigger such penalties.
	I hope that Ministers will reflect carefully on the following point. The one sanction that my right hon. Friend the Home Secretary mentioned in talking about the types of ordersapart from house arrestthat might be imposed was that relating to mobile phones. There are tyrannies of the left and of the right, and although they start from very different political points, both often lead to similar results. These include the use of house arrest and detention, muddle surrounding the use of judicial procedures and the role of politicians, and major abuses of human rights. As well as major infringements such as house arrest, there can also be minor ones that none the less weigh heavily on the people concerned, and which speak of a highly authoritarian state.
	I shall give Ministers one such example to think about that is roughly on a par with the mobile phone example mentioned earlier. A friend of mine who lived in South Africa was subject to such an order. Although the state allowed him to attend his wedding because it was a so-called Christian state that therefore regarded marriage in a church as important, it would not allow him to attend the reception because it was a social gathering. If we introduce control orders, we must be very clear about what we are doing. We must ensure that orders that are intended to provide for constituents' safety and security, and to protect this country from any kind of terrorist attack, do not lead to the petty vindictiveness associated with authoritarian states, and to the imposition of completely unreasonable limitations on people's freedom of movement and ability to go about their ordinary lives.
	In conclusion, I again ask Ministers to clarify whether they intend to make any changes to paragraphs (a) to (d) of clause 1(8), and to explain how such changes might relate to the different types of control orders and the manner of their introduction.

William Cash: Fascinating though this debate has been and important though the contributions have been, there has perhaps been a slight tendency for the Committee to underestimate the danger posed to national security. Much has rightly been said about civil liberty, and I do not doubt for one minute that that issue is of absolute and fundamental importance. However, we are in a somewhat curious position. On the one hand, a state of emergency was declared in the aftermath of the destruction of the twin towers; on the other, we are not actually in a state of war.
	In drawing an analogy with the circumstances that gave rise to past examples of detention without trial, one automatically looks back to the first and second world wars. As I said repeatedly in interventions on the Home Secretary during last week's statement and on Second Reading, we should consider the case of Liversidge v. Anderson. I seem to be the only person interested in it, but it is of fundamental importance to our understanding of how such matters should be dealt with. On that occasion, the Home Secretary's function in relation to detention without trial was associated with the words reasonable cause to believe. In a time of war, when there was detention without trial, the court in questionthe House of Lordsoverrode the test of reasonableness in favour of the individual. It gave the judgment to the Home Secretary on the grounds that, in the light of the various circumstances, he was best placed to know the intelligence and the danger to the state, and that his function had to predominate.
	As I pointed out in interventions, the fact remains that the only dissenting judgment from that of Lord Atkin was unequivocally supported in all subsequent rulings in the House of Lords and in other important cases. It could be said, in the context of the Liversidge v. Anderson case, that the test of reasonableness should not have been overridden and that the House of Lords was wrong on that occasion. That is more or less the basis on which the current legal position stands in respect of wartime circumstances.
	In other cases, the courts have given, to use the words of one of the academic authorities, short shrift in wartime to the individual who has been held in detention without trial, where there was suspicion that that person was involved in activities that were contrary to the interests of the state. Much of our debate so far has tended to gravitate more around the civil liberties issues, which we all acknowledge are of fundamental importance, than around the necessity to secure the interests of the people of this country in a time of emergency.
	I have also mentioned the Rehman case, in which the judgment of Lord Hoffmann was unequivocal. It is important to mention Lord Hoffmann in our debate. In the Belmarsh case, it was he who used the most insistent language against the Government. I should like to quote from the Rehman case, where the noble Lord Hoffmann argued that the events of 11 September 2001 in Washington and New York were
	a reminder that in matters of national security, the cost of failure can be high. This seems to me to underline the need for the judicial arm of government to respect the decisions of ministers of the Crown on the question of whether support for terrorist activities in a foreign country constitutes a threat to national security. It is not only that the executive has access to special information and expertise in these matters. It is also that such decisions, with serious potential results for the community, require a legitimacy . . . through the democratic process. If the people are to accept the consequences of such decisions, they must be made by persons whom the people have elected and whom they can remove.
	There is, therefore, a certain correlation between what the Home Secretary says and what Lord Hoffmann said in that important judgment.
	None of that in any way disposes me to change my view that the manner in which the Bill has been conducted and the outrageous way in which the Government have applied the programme motion to such important debates is disgraceful. I could not support the Government's handling of the Bill in any way, but I have to say that there are a whole string of precedents to demonstrate that, in wartime emergencies, the courts have been reluctant to support civil liberties. As I have said, we are now in a twilight position whereby we live in peacetime, but face emergencies. That poses a curious and difficult dilemma over the balance of judgment between preserving civil liberties and dealing with terrorist activities.
	One matter that has troubled me throughout these proceedings is the tendency to overlook the crucial facet of respect for the law, which the terrorists themselves are disinclined to accept. SomeMembers will know who I am talking aboutare of the persuasion that there is a superior law to the law of this land, so they are not interested in our arguments about civil liberties. For certain people, as I say, there is a higher law than the law of the land. That problem cropped up in the 16th century, when serious questions about treason were connected with political activity. For example, the Jesuits were accusedmany were hung, drawn and quarteredbecause they believed that they were pursuing objectives that could be justified as representing a higher religious law. That has dissipated in the interim and we now all subscribe to the rule of law. However, there are those who do not subscribe to our understanding of the rule of law, and that must be taken into account. It scarcely matters what our laws are if some peopleeven a tiny minoritydo not subscribe to our rule of law and we end up with civil liberties ahead of the realities with which we could be faced.
	In the important case of Conway v. Rimmer some years ago, Lord Pearce said:
	the flame of individual right and justice must burn more palely when it is ringed by the more dramatic light of bombed buildings.
	We must bear that in mind when considering such important matters.
	The issue at the centre of this debate is that the Government have locked themselves into a dilemma and thrown away the key. The key is the enthusiastic and determined upholding of the Human Rights Act 1998, which put the European convention on human rights into United Kingdom law. Few in the Committee would believe that I am not in favour of maintaining the rights of the individual. Human rights are important; the problem is the framework within which they are put.
	The 1998 Act can be overridden by Parliament and in the case of Simms and O'Brien, Lord Hoffmann said unequivocally that if we were to legislate inconsistently, unclearly and ambiguously, contrary to the 1998 Act, we could do so. I tabled a new clause that would have made that crystal clear but, unfortunately, it was not selected. The Government deserve to be severely censured for the way in which this farce has been conducted this afternoon, but the Bill will go to the House of Lords and amendments will be tabled there. It would be sensible to attach to the Bill a preamble stating notwithstanding the Human Rights Act 1998. We would then know that we were legislating on our own terms in this House on behalf of the voters of this country, who are more concerned about the balance between liberty and protection of the nation to ensure that they are properly protected. That debate has not yet concluded and it is disgraceful that the Government have prevented the matter from being properly debated this afternoon. Had they tabled amendmentsI believe that they have, at least, been draftedwe could have had a much more constructive discussion.
	The second issue concerns proportionality and discrimination. In the Belmarsh case, eight of the nine distinguished and important judges in the House of Lords made a decision based on the Human Rights Act 1998 and its application to those circumstances. The issue should not be proportionality and discrimination. Leaving aside the 1998 Act for the time being, the issue should be about the proper balance between the liberty of the subject and the safety of subjects. I do not think that we have got to that point properly in these discussions, and I blame the Government for that. They have been besotted with the Human Rights Act 1998 and they have not handled this Bill well, although I appreciate the difficulties involved.
	The real question should be to ensure that we have fair trials for those people who are imprisoned or detained. At the moment, there is no evidence that they would get a fair trial. It is a disgraceful state of affairs if the House of Commons is incapable of coming up with legislation that would guarantee that people had a fair trial on the evidence that could be produced, so that they could be properly prosecuted. Of course that can be achieved.
	I have real problems with the way in which the Bill's passage has been conducted, but I also have real problems with the solution that the Government have provided. I also have considerable difficulties with the Joint Committee on Human Rights and the report it published on 25 February. The section entitled The lack of prior judicial involvement in orders depriving of liberty is based entirely on the Committee's assumption that the whole matter should be conducted within the framework of the ECHR and the 1998 Act. The same was true of the Law Lords' judgment in the Belmarsh case. The Committee will gather that I repudiate that assumption. The danger is that the Bill will be unsustainable and is as likely as not to be overturned by the Law Lords in the application of the 1998 Act. We will have made no further progress, despite this farcical pantomime, in getting the balance right between liberty and security.

Jim Cousins: If the hon. Gentleman does not like the European convention on human rights or the Human Rights Act 1998, will he consider Magna Carta and the Glorious Revolution of 1688? Perhaps they would appeal more to him.

William Cash: I do not think that we need do as the hon. Gentleman suggests, although we have a great attachmentunderstandablyto the idea of Magna Carta. Even more important was what I said to the Home Secretary when I asked him whether habeas corpus would still be applicable after the Bill became law. That is a really important question for today. He gave an unequivocal yes to that question, and I was glad to hear it. In the wartime cases I mentioned earlier, the remedy of habeas corpus was still available, although because of Liversidge v. Anderson it became impossible to apply. I extracted from the Home Secretary this afternoon what I regard as the most important concessionor perhaps I should say assertion, because I do not want to give the wrong impression. The fact that the Home Secretary said that habeas corpus will still be applicable is fundamental to our proceedings today.
	In my intervention on my hon. Friend the Member for Beaconsfield (Mr. Grieve), we discussed new clause 6. I cannot give it enthusiastic support because at its very heart, in subsection (8), it states:
	The court shall not impose any obligation under subsection (7) unless it is satisfied that the following conditions apply.
	Those conditions include:
	that the obligation is consistent with the defendant's Convention rights within the meaning of the Human Rights Act 1988,
	which takes me back to my concern about that Act.
	The application of the Act has resulted in the creation of the Government's current problem. Throughout other jurisdictions in the European community, or the European Union, there are procedures that fall far short of the sort of procedure whereby we are accustomed to preserve the civil liberties of the people of this country, and it is ironic that we are continually being faced down with accusations that we are being anti-European when we make remarks of that kind; in fact, we are really trying to say that the voters of this country should decide on the laws under which they are to be governed, and how they are to be governed, and that we should regulate those laws not by reference to some European nirvana but because we have legislated in the House in accordance with what the voters of this country want.
	The reason the proceedings today have been so farcical and are a disgrace to the traditions of the House is that we are still discussing proposals for amendments that are not being put before us and that we are unable to do more than second-guess. They are confused, and adversely affected, by a commitment to a European convention that has created the very problems that we are trying to resolve.

Sally Keeble: On a point of order, Sir Michael. Perhaps I should have asked this question later on. We shall be voting on the amendment that obviously contains aspects of judicial review. If the Lords do not pass the Government's amendment or accept a different version and the Bill returns to this place for us to vote on the Lords amendments, will we be able to consider the amendment that the Government are proposing to put forward, or will we be able to vote only on the Bill as it comes from the Lords? Can you, Sir Michael, explain the proceedings so that they are clear?

Michael Lord: The answer to the hon. Lady is, no, I do not think that I can. She is putting a hypothetical question to the Chair. There is no point in trying to assume what will happen until we see how the debate and votes go.

Vera Baird: I congratulate my right hon. Friend the Home Secretary on having taken steps to put the judge first where, under clause 2, liberty will be taken away and there will be a derogation from the convention to facilitate that. It will now have to be done on application to the court and, overwhelmingly, there will be no Executive detention. That is a hugely important point, and I congratulate my right hon. Friend. If that is contrary to his instincts, as he asserts, his better judgment has certainly won the day.
	That provokes a question that has been raised repeatedly: if that system is good enough for the higher level, why is not it good enough for the lower level of taking away liberty? I want to make a point that has not yet, I think, been made. The Home Secretary has made it clear that he has no intention of derogating. Consequently clause 2, on which the concession is made, will not come into effect, so although the concession is important it is only academic, because he will not derogate. We must thus focus our attention on clause 1, the non-derogating control orders, becauseforeign, British, Belmarsh detainee or free at the momentall the people who fall within the ambit of   needing to be controlled will be dealt with under clause 1, not clause 2. We are still concerned with a section of statute whereby the Home Secretary can make an order that severely limits a person's liberty and all that person can do is appeal afterwards to the court, if he chooses to do so. I accept that, under the concession made by the Home Secretary, such things may happen more quickly than was first anticipated under the Bill, but that is a rather weak point, and I want to make a different point that has been reflected already in what was said by my hon. Friend the Member for Sheffield, Attercliffe (Mr. Betts).
	The appeal that can follow the making of a clause 1 control order is not only unsatisfactory because it comes second, but is of extremely poor quality: it is judicial reviewvery suitable for reviewing the way in which lower courts, planning inspectors or local authorities make their decisions and scrutinising the way in which such a decision is taken, but highly inappropriate for deciding whether people have been deprived of their liberty or whether their liberty has been limited.
	Such reviews take into account how the decision was made, so the decision can be quashed if something is left out that should have been taken into account, or if something is taken into account that should not have been taken into account. However, all that need be done is to take the same decision again while taking account of what was left out the first time or whatever the court has found wrong. The same decision can be taken again, so long as it is done properly. No one looks at the merits. No one determines the facts thoroughlythat is done only in so far as is necessary for that very limited processso it is a very poor form of appeal, as well as being only an appeal.
	If the clause 1 order goes too far and, as we discussed in an exchange that I had with the Home Secretary, takes away libertygiven the variety of possibilities in clause 1, any number of them put together could amount to a breach of article 5on the judicial review, or what I have called the poor quality appeal, the judge could find that order unlawful, contrary to article 5, and quash it. So for those top-end cases where the Home Secretary inadvertently orders something that breaches article 5, even though it comes under clause 1, the appeal process can quash itbut liberty will have been taken away under clause 1 by then, and all that can happen is that the person can appeal, with his liberty being restored to him some time later.
	If the reason why an application must be made to a judge under clause 2 is that taking away liberty is too severe a penalty for the Home Secretary to impose, that argument applies equally to clause 1. From time to time, a very fine balance will have to be struck about whether or not a combination of all the possible orders goes over the article 5 limit. It is unrealistic to think that it is not appropriate to let the court make such decisions. It is harder to get the balance right with such decisions than simply to order house arrest, and it is extra important that the courts should have scrutiny over those decisions, but liberty is gone in exactly the same way as under clause 2, so there is no reason not to apply the same procedure.

Michael Weir: I am following the hon. and learned Lady's argument and very much agree with what she is saying. She welcomed the change to the derogated orders, but if we are talking about an ex parte application where the judge can only look at the material, as the Home Secretary's letter sayswe have no further detail than thatI am not sure whether there is much difference. As I read that letter, the judge will not able to look behind that material and consider the evidence. Does the hon. and learned Lady agree with that interpretation?

Vera Baird: Obviously, a two-stage process is involvedit is intended to be an ex parte application for speed, whereby the judge will consider whether there is a prima facie case. The process is not at all unfamiliar to lawyers. He will make what is in effect an interim order, and there will be an inter partes hearing when all the material will be put. So I suppose that that is unsatisfactory, but it is all that is practical in the very short term.
	I repeat that, although at the top end of those orders, if they break article 5, they can be quashed. That is a good thing. None the less, it is very bad that they can be quashed only after liberty has been taken away, and that they ever came into being. Any judge to whom an application was made under clause 1 who thought that all the controls went so far as to breach article 5 would simply never make the order, so there would never be a deprivation of liberty. Surely that is the right way round. However, for something that falls short of taking liberty away, the level of the appeal is very poor.
	I do not wish to labour the point, but the penalties that can befall someone under clause 1 are extraordinarily intrusive and can transform a person's life. They include obvious interferences with freedom of movement, family life and freedom of association. Someone may be ordered not to speak to any member of his family and he may be told to move house, stop doing his business or job or to change his job. He has to agree in certain circumstances to tell people in advance what his movements will be, and he has to allow his premises to be searched. He can be made to wear a tag and may not be able to use the internet or a mobile phone. Limits can also be placed on his movements all over the United Kingdom. In fact, there might be a mixture of all the penalties together or any other thing that the Home Office thinks is necessary in addition to those that I have mentioned. That is a very serious interference with liberty.

Richard Burden: Does my hon. and learned Friend agree that the intrusions can be so great that, in a particular combination of circumstances, they could, in practice, get in the way of that individual being able to exercise his rights of appeal? He might not be able to contact the people whom he needs to contact, and if he did not know his way around the law in the first place, he might not even be able to access the judicial involvement that the Bill would wish him to have.

Vera Baird: I suppose that that might be theoretically possible, but I would not have thought it likely that the Home Secretary would make an order that someone could not phone his solicitor and discuss the situation in which he had been placed. However, I guess that the possibility cannot be excluded.
	Let me emphasise what I have said already. All the penaltiesor any of themcan be imposed on an individual and no judge will look at the questions of fact as to whether there are reasonable grounds for suspecting that that individual is involved in terrorism at all, or at whether the restrictions are necessary to protect the public. Nobody will look at that. Colleagues may think that that is completely unacceptable and that the poor quality of appeal, as placed in the legislation, is a potent additional reason to all those that have been heard before for us all sticking out for an application having to be made to a judge and the whole thing being assimilated with the new process in clause 2.
	I wish to consider the reasons that have been put forward for separating clause 1 from clause 2. The Home Secretary said that the task of assessing and evaluating evidence in order to take a preventive measure is something that the Secretary of State is better equipped to do than a judge. I guess that that means assessing intelligence. As the right hon. and learned Member for Rushcliffe (Mr. Clarke) said, that point applies to both clauses 1 and 2. House arrest, under clause 2, is a preventive measure. It is not about something that has happened before but about something that one wants to stop happening again. If the Home Secretary concedes that, when it comes to evaluating whether clause 2 measures are necessary, the right person to do that is a judge, the same argument has to go for whether a clause 1 provision is necessary.
	Is there any real difference? Let us look at the test for a clause 1 order. Clause 1(1) says that the Secretary of State may make an order if he
	(a) has reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity; and
	(b)
	considers that it is necessary for . . . protecting members of the public.
	Let us look at the test in clause 2. Subsection (1) states that the Secretary of State can make an order if
	(a) he is satisfied, on the balance of probabilities, that the person is an individual who is or has been involved in terrorism-related activity;
	   (b) he considers that the imposition . . . is necessary for purposes connected with protecting members of the public.
	That is exactly the same test. If the judge is the right person to perform that test for clause 2, he is obviously the right person to perform it for clause 1.
	What else has been put forward? Only a few may fall under the ambit of clause 2, but at the moment we are told that there are none. More may come under the ambit of clause 1, so will we overwhelm the judiciary with a large number of cases if we require it to look at those covered by clause 1? I do not imagine so; no one has ever talked of more than, at most, a few hundred. In the context of the cases that the courts hear day in and day out, that is not a large number to add on. One would also imagine that lower-level control orders need not necessarily go to the High Court, because they could go to a professional magistrate who had security clearance. There would be a good deal of scope for that to happen, so we would not overwhelm the judiciary.
	It is said that the judges do not want such involvement. Lord Donaldson, who retired a decade ago, said that, but his comments seem to have been open to interpretation. I have not heard further compelling evidence that working judges today do not want to deal with the orders. It seems that they will at least do clause 2 adjudications under sufferance, so why should it be more difficult for them to do clause 1 adjudications? I dare say that they will do what Parliament asks them to do.
	I could not follow the distinction between a deprivation of liberty and interference with liberty. If there is a real distinction between the quality of the impact of the control orders, that is a poor reason for obtaining them using different procedures.
	On Second Reading, I asked the Home Secretary to take the small step of putting the judge first, thus springing us free from Executive detention and interference with liberty. He has taken half that step, but by doing so he has utterly shattered any logical reason why he should not take the other half. Amendment No. 4 better represents what the proper position should be than the Bill, as it would provide for judicial involvement in clause 1 applications.
	We are in a hideous position because we will no doubt be asked to vote today against judicial involvement in clause 1 applications. However, the Bill will go to the Lords tomorrow. The Lords will no doubt vote for judicial involvement in clause 1 applications, and this time next week we will doubtless be asked to vote for that. The situation is a complete nonsense and the shortage of time makes that nonsense greater and more obvious.
	I regret having to say this, because I have immense respect for the Home Secretary and am pleased that he has taken the step that he has. However, drawing a distinction between clause 1 and clause 2 orders makes no sense whatsoever, and I am afraid that we should say so.

Patrick Cormack: Hon. Members always listen to the hon. and learned Member for Redcar (Vera Baird) with attention and respect. She has great forensic skills and is a lawyer of tremendous experience. She brings her experience to our debates in the Chamber, so we are grateful to her. I agreed with many things that she said.
	As I am not a lawyer, I start from a slightly different base to the hon. and learned Lady. When the Government first announced the Bill, I was extremely sympathetic to it. I believe that the prime duty of any Government is to safeguard the integrity of the state and all its citizens. Although in the normal course of events, as I said to my right hon. Friend the Member for Hitchin and Harpenden (Mr. Lilley) last week, it is far better for a guilty person to go free than for an innocent one to be punished, when one is dealing with suicidal terrorists, one perhaps has to redress the balance a little.
	I am, however, persuaded that the Home Secretary has not handled the situation as well as he should have done. Although he is not here, I make a point to him through the Minister for Crime Reduction, Policing and Community Safety. I remember saying this when we were in government and I was speaking from the other side of the House: any Minister of the Crown should beware of taking powers that he does not wish his opponent to use. For any Home Secretary to take such supreme powers is dangerous, both in itself and in its implications. However, I rather agree with the hon. and learned Member for Redcar that this time next week we will probably see yet another step on the road to sanity.
	We are all in your debt, Sir Michael, for allowing a wide-ranging debate on this series of amendments. It was essential that you did so in the wake of that extremely long speech, or teach-in as it almost was, by the Home Secretary. He was generous in giving way, but he came to the Committee having circulated that letter and in effect gave notice that he was going to rewrite some of the fundamental parts of the Bill. So all the amendments in the first group are, in the words of my right hon. and learned Friend the Member for Rushcliffe (Mr. Clarke), otiose.
	The real problem that the Committee faces is that because the Government have handled the matter so badly, a Bill of far-reaching importance is not having the parliamentary scrutiny in this place that Members on both sides believe it should have. When the Leader of the House announced in that brief business statement a week ago today that we would have the Bill, I begged him to defer Second Reading until today so that we could have the weekend to discuss it and reflect on it, and to have the remaining stages later this week. Frankly, there was no reason why we could not have done that and also adhered to the Government's timetable.
	I believe that the Government have panicked. The offer made by my right hon. and hon. Friends on the Front Bench to extend the existing provisions of the current Act was right. That could have been done and it would have been reasonable to do it, but even accepting the Government's case that they did not wish to do that, we could still have met their timetable of 13 or 14 March and had a more coherent and better discussion in this place.
	The time is now 9.17 pm and, according to the timetable motion passed earlier today, these proceedings have to come to a conclusion at 10 o'clockyou, Sir Michael, or whoever is occupying Chair, have no option on thatyet we are still on the first group of amendments. I was briefly absent from the Chamber, but heard most of the speeches. I certainly did not hear a word of filibustering from hon. Members on either side of the Committee. Yet all these other important aspects of the Bill remain to be discussed, and none of them will be discussed.
	When we move on to Third Reading, we will leave a Bill that directly, or indirectly by implication, could affect the lives of many people and change the balance in so far as the liberty of the subject in this country is concerned. When we leave the Bill, we will not have scrutinised it or discussed it in the House of Commons. Yes, it will have four days in the other place. Yes, there are many learned lawyers in the other place who will be able to bring the wisdom and experience that the hon. and learned Member for Redcar brought to her contribution.
	I am one of those who believe that the House of Lords, as currently constituted, adds great value to our democratic procedures. I do not suppose that the hon. and learned Lady would entirely agree with that, but I am sure that she would agree that there will be detailed scrutiny and sensible debate down the Corridor. However, we are the elected House and have a duty to hold the Government to account, and, because we do not have a separation of powers, the Government have a duty to allow us to hold them to account. That duty has not been fulfilled in respect of this extremely important Bill.
	I have been here now for almost 35 years and others in the Chamber have been here as long. I see the right hon. Member for Oldham, West and Royton (Mr. Meacher) in his place. I do not remember any major piece of legislationhe may, and I will give way to him if he does sothat has aroused such widespread unease in all parts of the House. I do not remember any major piece of legislation put forward by any Government, from the Government of Edward Heath to the present one, for which not a single speaker on Second Reading or in Committee has made an enthusiastically endorsing speech. Yet, in spite of that and of the grave misgivings, which are honourably shared by many on the Government Benches, we are not to have the chance properly to examine and scrutinise.
	Many of us made appeals this afternoon in points of order and in other ways. We must have tried severely the patience of Sir Alan, Mrs. Heal and you, Sir Michael, and for that I am sure I can apologise on behalf of us all. However, they were legitimate points of order. We tried very hard to get a suspension so that there could be reconsideration of the timetable and so that we could have another day of debate. If we had had another day of debate on Wednesday, we could at least have discussed in some detail most of the major aspects of the Bill. It is tragicI use the word deliberatelythat the Prevention of Terrorism Bill has become the prevention of parliamentary debate Bill.
	I know that people in the country are deeply worried about terrorism; of course they are. I saw, as I am sure almost everyone present will have done, the poll in The Daily Telegraph this morning, which showed a large majority of people taking the line, which broadly I take, that if it is necessary to sacrifice a little civil liberty for overall civil protection, then so be it. If that is the line taken, how much more is it our duty to ensure that any Bill that we enact does not bolster the power of any Government or individual Minister, but rather gives the final arbitrating role to a judge or even perhaps, as suggested in one amendment that I tabled, which I am sure was quite properly not selected, to the Select Committee on Intelligence and Security, without the agreement of which and without full consultation with it the Home Secretary could not act. That would be a safeguard.
	The hon. and learned Member for Redcar was a little scathing about Lord Donaldson, but my hon. Friend the Member for Stone (Mr. Cash) quoted Lord Hoffmann. There is a certain reluctance among judges past and present. If the decision is not to fall to a judge, at the very least it should be taken by a cross-party group of Members who can advise and work with the Home Secretary. I believe that the hon. Member for Bridgend (Mr. Griffiths) tabled a similar amendment. We tabled them totally independently of each other, neither knowing that the other had done it. Both of us were seeking a solution that would take away the arbitrary power of the Home Secretary, whoever he or she may be.
	The Bill will pass to the other place tomorrow. Their lordships will have their four days in Committee. The Bill will then have to come back to us as amended. I echo the plea made by a number of hon. Members earlier in the debate: let us have a generous allocation of time to debate the Lords amendments in this place, because the House of Commons would be held in contempt if it were given one or two hours to discuss such matters of far-reaching importance. Third Reading will be brief, and only one or two hon. Members will have an opportunity to make a few points of principle.
	I have great respect for the Minister for Crime Reduction, Policing and Community Safety. She is always courteous and often humorous. She has done extremely well in her relatively brief time in the House and I wish her well in future, especially in opposition. Will she please listen carefully to the concerns expressed by Labour Members, as well those expressed from this side of the Committee? The Government have not treated Parliament with respect, which they should have done in introducing a Bill that is unprecedented in 300 years or more.
	This is a sad day for those of us who care about Parliament. I hope that the Government will never again seek to railroad through a Bill of major constitutional importance with such a ridiculous timetable.

Crispin Blunt: Plainly, I play second fiddle to my hon. Friend the Member for South Staffordshire (Sir Patrick Cormack) in terms of parliamentary experience. He has made the point that the concern is shared on both sides of the Committee and that the issue is immensely serious because it concerns the role of the Executive and the liberty of citizens. I have not dealt with more important legislation than this Bill, which concerns the security of the nation balanced against the liberty of the individual.
	The way in which the matter has been handled should be an appalling embarrassment to all hon. Members. Earlier, I intervened on the Home SecretaryI am pleased that he is herein the hope that he would take the opportunity to find a better way to deal with the matter. He replied that because I oppose the principle of control orders and of the Bill, I have no right to invite comment on how the Government should take the matter forward, and he then gave his own presentation of my views.
	We should all be appalled that the Government, or anyone else, think it necessary to introduce such measures. If the Government are correct and the situation in which they find themselves and the threat that the nation faces is such that we must put this Bill on the statute book, it should give us extreme pause for thought. The Bill is being introduced in the most enormous hurry, and we have not examined from first principles why it should be put on the statute book. Given the enormous controversy surrounding the Bill, it is essential that the Government take seriously and listen to the debate on this group of amendments, which relates to the role of the judiciary and the courts.
	Enormous confusion exists about the need for control orders. If the Government stated that control orders are the only way to deal with the threat that we face, I would be prepared to be convinced. However, the threat from al-Qaeda is not somehow different from the threats that our nation has faced down the centuries. In the early 21st century nations possess significant advantages over non-state actors who are determined to overthrow the state. We have never before come across the quantity of information to which states have access and which they can collect about people.
	I understand that when the Prime Minister was interviewed on Woman's Hour today, he saidoutside this placethat the orders may be applied to hundreds of people. That, together with the fact that the Leader of the House explained last week that the Bill had to be rushed through the House in six days, suggests that we are facing an emergency and that we are not being given the entire picture. The apparent position is that we must have something on the statute book by 14 March in order to replace the measures that will fall because of the judgment in the House of Lords. Yet the Home Secretary will not apply the control orders under clause 2 to the people who will walk out of Belmarsh and be subjected to a type of control order that does not require a derogation from the convention.
	I am confused about the depth of the threat that our nation faces from its own citizens. I want the Government to produce the evidence and convince me of the scale of the threat. The dossier that they produced to support the Second Reading debate is not sufficient to justify measures that fly in the face of 790 years of the tradition of British justice and the liberty of British citizens. I listened the Minister for Crime Reduction, Policing and Community Safety on the radio this morning. Her instinctive assumption that she, as the Minister, must take at face value the requests of the Security Service and the police and give them all the powers that they desire is not good enough. We need a proper case to be made so that we can be convinced by the weight of the evidence.
	The Prime Minister, at Prime Minister's questions last week, told the House that the security service was unanimous, but I find that extremely difficult to believe. There are more than 2,000 members of the Security Service, as I understand it, and I find it difficult to believe that although powers on this scale have been met with controversy in the House and in the country, that controversy is not reflected in the Security Service and the police. Members of those services understand the consequences of a lack of faith in Government if the Government take powers to themselves that people see as unfair and potentially unnecessary because there is no proper judicial process to allow people to put the case in their own defence in the proper way.
	I identified 23 different debates arising from the first group of amendments, but we all know that there is little point in trying to deal with the detail of the business before us because the Government will put a different Bill before the Lords. If the Bill passes through another place and we in due course consider Lords amendments, I hope that the Government will give the House sufficient time to do its job properly, which it has not done in the first stages of consideration of the Bill.

Dominic Grieve: This has been a fascinating debate. There have been some excellent contributions ranging right across the spectrum, from the right hon. Member for Livingston (Mr. Cook) to my right hon. and learned Friend the Member for Rushcliffe (Mr. Clarke), who come from opposite political poles and perspectives but take the same view in their dislike of the legislation and, moreover, in their suspicion of the Government's motives in the way that they have presented it. Plenty of other contributions, some from lawyers, whom the Home Secretary appears not particularly to like, highlighted the novel powers that the Government are seeking to take for themselves and urged them on one discrete issuethat is all that this debate is aboutto change their mind and to allow non-derogation powers to be properly used by a judge under precisely the powers that would be available if they were derogation powers in terms of reviewing the facts of the case.
	Even at this late stage, I hope that the Home Secretary will listen. As I fear that he will not, however, I will voteI encourage every Member in this House, certainly those on my Benches, to do likewisein support of the amendment tabled by the hon. Member for Bridgend (Mr. Griffiths). As this will in reality be the conclusion of our scrutiny of this Bill, it is essential that this Committee should send a signal to the other place regarding what is troubling us. I ask all hon. Members to think carefully about their own positions and be willing, if they possibly canalthough I am sure that some will be loyal to the Governmentto go into the Lobby to support the hon. Gentleman's amendment and send out a signal that the Government need to think again on this issue.
	I ask the Home Secretary to deal with one last point, which was picked up by my hon. Friend the Member for Reigate (Mr. Blunt). There is a discrepancy between the number of people whom the Home Secretary believes will be affected by these orders and the number whom the Prime Minister says will be affected. I have here the Prime Minister's quote from Woman's Hour, where he said:
	you have got to give us powers in between mere surveillance of these peopleand there are several hundred of them in this country we believe are engaged in plotting or trying to commit terrorist actsbetween mere surveillance and being sure enough of proof to prosecute them beyond reasonable doubt.
	I hope that the Home Secretary will use the opportunity in winding up this debate to answer that discrepancy so that the Committee can understand what we are dealing with.
	More generally, it would be most helpful if the Government would be franker with the Committee about what they want and the difficulties that they face. If they did that, and listened better to what the Committee has to say, they would find it much easier to obtain a consensus on these difficult issues.

Charles Clarke: I will be brief because I have had more than my fair share of time in this debate. We have had a very full and good debate. First, let me say in response to those right hon. and hon. Members who sought more time for the debate that I will certainly consider with my colleagues through the usual channels the extent to which this House can debate the issues that come back from the other place.
	Secondly, I believe that I have made very major and significant movement on the proposals that I originally put. I did so in order to seek consensus in this House on these very important matters, particularly on the very powerful motivating concern that I heard expressed by Members on all Benches regarding the need to have proper judicial scrutiny of deprivation of liberty. I have sought to respond to that central concern.
	Thirdly, I want to make it very clear that every decision of the Home Secretary has to be justified on the basis that it is necessary and proportionate and will be subject to judicial assessment in a very full way.
	Fourthly, I want to confirm the point with which I started this whole debatethis is a difficult and problematic issue. Lord Carlile, the reviewer of these matters, stated in his report, powerfully and truthfully, and in a way that the whole House should take full account of:
	Having seen extensive material, I am in no doubt that national security could be at risk if certain types of evidence were revealed to the detainees. At risk too would be some individuals' lives. The kind of evidence I have in mind includes that provided by . . . human resources including those who might be described as a term of art as 'informants', disclosure of locations used for observation, details of technical facilities available for listening to and/or reading communications, descriptions and identities of police officers and others, and methods of risk assessment used by the control authorities.
	Those are serious matters.
	The hon. Member for Beaconsfield (Mr. Grieve) cited the hon. Member for Reigate (Mr. Blunt) and raised the Prime Minister's comments on Woman's Hour earlier today. It was put to the Prime Minister's official spokesman that my right hon. Friend had said in the interview that there were several hundred people plotting a terrorist attack, which is the case. The official spokesman was asked whether that would mean several hundred house arrests. He replied, No, and said that the Prime Minister had used exactly the same phraseology last week in Prime Minister's questions and made it clear that, at the extreme end of control orders, which we are discussing, we envisage using the provision against very few people.
	The hon. Member for Reigate asked whether there was any evidence to show that British citizens were involved in such activity. I cite today's evidence about Mr. Sajid Badat, a British citizen, who admitted to plotting to blow up a plane, in league with Richard Reid, the notorious shoe bomber, who is also a British citizen.

Crispin Blunt: Will the Home Secretary give way?

Charles Clarke: I shall not. [Interruption.]

Sylvia Heal: Order. It is up to the. Member who is on his feetin this case, the Home Secretaryto decide whether to give way.

Charles Clarke: Thank you, Mrs. Heal.
	We are considering major issues. As I have said throughout our proceedings, we must balance national security with civil liberties in relation to British and overseas citizens. I believe that our proposals are right and I hope that Parliament will support them.

Edward Garnier: The Home Secretary has done his best to explain his change of heart, although I suspect that it is driven more by political expediency than an assessment of the Opposition's argument. None the less, he has done his best and I thank him for the change of policy, even if it was produced through a letter rather than by formal amendments tabled in the proper way.
	It is a pity that the right hon. Gentleman's enthusiasm for his caseor at least for the advice that he has been givensometimes allows him to draw strength from material that is not helpful to it. Let us take the case of Badat. It demonstrates the strength of the criminal justice system, not the need for the sort of proposals that the Home Secretary presented.
	No Conservative Member, especially the Leader of the Opposition, could ever be accused of being soft on terrorism. When my right hon. and learned Friend the Member for Folkestone and Hythe (Mr. Howard) was Home Secretary, anybody who suggested that he was soft on terrorism would have been laughed out of court. When the Home Secretary mumbles into his beard that the Leader of the Opposition is soft on terrorism, nobody believes him. My right hon. and learned Friend was criticised for being the oppositefar from soft on anything to do with civil liberties or anything that stank of terrorism. It is absurd for the Home Secretary to rely on the Badat case, which went all the way to the Old Bailey and produced a change of plea today, and to bounce off that and claim that the Conservative party is soft on terrorism. We know that that is absurd and so does he.
	We all accept the need to protect the nation from terrorist activities by foreign people and British citizens. [Interruption.] The Home Secretary says that I do not. I do not know how he thinks that he can read my mindhe can hardly read his own after his performance today. My family and I and my hon. Friends and their families have fought hard against terrorismwe have seen colleagues blown up and killed through it.
	We do not need lectures from the Home Secretary about being soft on terrorismperhaps he would care to button his lip on that and simply listen to people who want him to succeed in dealing with the problem but do not wish him to suborn the parliamentary process in doing so. It is important that the parliamentary process should keep its integrity. When a Governmentthrough a Secretary of State or a Ministerunwittingly or wittingly mislead Parliament about what they intend to do to gain a guillotine, the process is utterly reduced and the Government should be ashamed.
	I shall sit down now, but I warn the Government that those in the other place will have listened very carefully to what the Home Secretary has said about the Bill, and to what those on the Labour Back Benches have said. I trust that they will also occasionally have listened to what Conservative Members have said. It is in our shared interest to deal with terrorism and it will not do for the Home Secretary to suborn the parliamentary process. He thinks that he can get away with it because he has a majority of 165, but I suspect that he will find that majority somewhat reduced tonight

The First Deputy Chairman: Order. This is wide of the amendment under discussion.

Crispin Blunt: I rise briefly to answer the Home Secretary. Twice today he has chosen to present my views, although they did not represent my views at all. I fully accept that there is a risk from terrorists, both British and foreign, in the United Kingdom. Surely the reason that British citizens were able to be taken to Guantanamo Bay had some basis in the fact that they were taking part in terrorist activity in Afghanistan. Anyone who has listened to the debates taking place in the Islamic community in the United Kingdomparticularly among the most extreme elements of that community, where we have seen people preaching wholly unacceptable messages in the streetswill understand that a small percentage of people in the United Kingdom have some ideological sympathy with the supposed objectives of al-Qaeda. I do not hesitate to say that that potential is out there.
	The Home Secretary specifically referred to al-Qaeda on Second Reading. He suggested that it posed a uniquely different threat that had to be met with uniquely different measures. That seems to mean that the Executive will take powers to themselves the like of which we have not seen since habeas corpus was suspended in the face of the threat from the French revolution. In taking those powers, however, the Home Secretary is doing something extreme and unique in the history of the United Kingdom, and it should therefore be beyond peradventure that the Government's case should be extremely strong. I do not accept that the threat is so unique that we should throw out 790 years of British jurisprudence and British traditions of liberty.
	The British criminal justice system has brought such people to justice, as my right hon. and learned Friend the Member for Rushcliffe (Mr. Clarke) has pointed out. Indeed, the Home Secretary adduced such cases in saying that British terrorists existed. We accept that. We faced down terrorism of an Irish dimension in Britain for more than 30 years, and we made mistakes in that regard when we went too far with the powers of internment. We undermined our case in defending democracy when the state took powers to take on the terrorists that went too far. We then acted as a recruiting sergeant for those

The First Deputy Chairman: Order. I remind the hon. Gentleman that, although there has been some latitude, he is again going very wide of the amendments under discussion.

Crispin Blunt: I am grateful for your guidance, Mrs. Heal.
	The Home Secretary weakens his case in support of the amendments that he is going to table to the Bill in another place, and the case against the amendments that we are considering tonight, when he misrepresents the arguments of people who take a different view from his own. It is extremely important that the Government do not indulge in misrepresentation, particularly given their record on other issues relating to war, peace and the security of this country. It is very important that they should carry as much support from the British people, and achieve as much consensus in this House, as possible. The way in which they have carried on has not assisted that objective at all.

Patrick Cormack: Let me ask the Home Secretary a question that I asked the Minister when I thought that she would respond to this brief debate.
	The Home Secretary spoke at length today, and dealt as best he could with many interventions. I hope that on mature reflection he will realise that he has behaved with a degree of arrogance and disdain towards Parliament that does not do him credit. I hope that before 10 pm he will return to the Dispatch Box and at least promise us that when the Bill returns from the House of Lords, where it will be given the scrutiny that we have not been allowed to give it, we will have a proper chance to discuss any substantive amendments made to it in the other place. The Home Secretary owes us that undertaking. The very least he can say is that he will have discussions with the Leader of the House immediately to ensure that proper time is made available.
	The Home Secretary may look peeved and fed up, but as Home Secretary he is answerable to the House of Commons. Members in all parts of the Houseincluding many of his own supporters, many of them loyal supporters over the yearsare deeply distressed by the way in which the Bill has been handled. I am closer to him on the Bill than many others, because, as I said earlier, I see a need to ensure the greater safety of the greater number, and certain liberties may have to be sacrificed; but he has gone about this in a manner that makes the proverbial bull in a china shop seem a model of taste, decorum, delicacy and decency.
	I urge the Home Secretary to tell us that we will have a proper chance to discuss amendments from the other place. He has rewritten the Bill in his letter. He has not tabled amendments so that we can debate them. He has not provided extra time so that we can debate them. He has treated the House of Commons, of which he is a Member, with contempt. I hope that he will now feel able to repent, and to give us the undertaking that I seek. He has eight minutes in which to do it.

Dominic Grieve: As I should have said earlier, I hope to be able to press new clause 6 to a Division. I realise that it is not perfect. I am sure that it could be improved, and a Report stage would have allowed us to do that, but I believe it encapsulates a process that might commend itself to many Members as an alternative to what the Government propose.

Alan Beith: It is not really possible to understand how clause 1 works without understanding clauses 7 and 8 and the schedule, because they determine what kind of judicial proceedings can take place. Like all the other clauses apart from clause 1, they have not been debated at all. I trust that proper note will be taken of that in another place. It is surely deplorable that such fundamental alterations and reductions in the fairness of our court processes can be approved in the House of Commons without any debate.

Win Griffiths: I rise with mixed feelings, having heard an excellent debate. Many speakers have been more eloquent than me, and better informed about the legal processes. They have presented arguments intended to sustain my amendment No. 4 and consequential amendments.
	I believe that my right hon. Friend the Home Secretary has been traduced by many Opposition Members, because of the way in which they chose to interpret his letter and our debate about that letter. It is clear from that debate that the Home Secretary was prepared to accept the principle of amendment No. 1, tabled by my right hon. Friend the Member for Livingston (Mr. Cook), and consequential amendments, and my amendment No. 6also relating to clause 2and its consequential amendments. However, it was also clear that he was not prepared toaccept amendment No. 4 and consequential amendments to apply the principle of the court making the decision to the non-derogating orders. We could debate the pros and cons and the nuances of that proposal for another six hours, but I believe that my hon. Friend the Member for Sheffield, Attercliffe (Mr. Betts) was right when he said that, having accepted the court making the decision on derogating orders, there would be no weakening of the fight against terrorism by accepting that for clause 1 and the non-derogating orders. My hon. and learned Friend the Member for Redcar (Vera Baird) pointed out, correctly, that the judicial review process is not strong when one looks at the issues that are at stake with non-derogating orders. Although any one of them did not amount to a loss of liberty, a combination of them could.
	Therefore, I hope that, even now, the Home Secretary will say that he would be prepared to accept in principle a change and look at ways of incorporating the principle of the court making the decision on non-derogating orders. I believe that that would make the process involved certain and consistent. By accepting amendment No. 4 along with amendments Nos. 1 and 6, it would mean that liberty and justice were protected in all cases. I hope that, if the Secretary of State cannot accept in principle my amendment, the Committee will have the opportunity to make its own decision.

Question put, That the amendment be made:
	The Committee divided: Ayes 253, Noes 267.

Question accordingly negatived.
	It being after Ten o'clock, The First Deputy Chairman, pursuant to Order [23 February and this day], put forthwith the Questions necessary for the disposal of the business to be concluded at that hour.

New Clause 6
	  
	Power to make control orders

'(1)   An application for an order under this section may be made by the Secretary of State if he is satisfied that the following conditions are fulfilled with respect to any person, namely:
	(a)   that the person is or has been involved in terrorism-related activity;
	(b)   that, having regard to all the evidence that would be admissible in criminal proceedings, there is no realistic prospect for conviction of that person for any criminal offence relating to their involvement in such activity; and
	(c)   that such an order is necessary, for the purposes connected with protecting members of the public from the risk of terrorism, to make an order imposing obligations on the individual.
	(2)   The Secretary of State shall not make such an application without consulting the Director of Public Prosecutions.
	(3)   Such an application shall be made to:
	(a)   the High Court in England and Wales in respect of persons resident in England or Wales,
	(b)   the Outer House of the Court of Session in respect of persons resident in Scotland; and
	(c)   the High Court in Northern Ireland in respect of persons resident in Northern Ireland.
	(4)   If, on such an application, it is proved that the conditions set out in subsection 1(1) are fulfilled, the court may make an order under this section (a control order) imposing any of the obligations set out in subsection 1(8).
	(5)   For the purpose of determining whether the condition mentioned in subsection 1(a) above is fulfilled, the court shall disregard any act of the defendant which he shows was reasonable in the circumstances.
	(6)   In determining whether the condition mentioned in subsection (1)(a) is fulfilled, the court must apply the criminal standard of proof.
	(7)   The obligations that may be imposed on a defendant under this section are limited to the following:
	(a)   a prohibition or restriction on his possession or use of specified articles or substances;
	(b)   a restriction on his use of specified services or specified facilities, or on his carrying on specified activities;
	(c)   a restriction on his association or communications with specified persons or with other persons generally;
	(d)   a prohibition on his being at specified places or within a specified area at specified times or on specified days; and
	(e)   a requirement on him to report to a specified person at specified times and places.
	(8)   The court shall not impose any obligation under subsection (7) unless it is satisfied that the following conditions apply:
	(a)   that the obligation is necessary for the purposes connected with protecting members of the public from the risk of terrorism;
	(b)   that the same purposes could not be achieved by less restrictive means; and
	(c)   that the obligation is consistent with the defendant's Convention rights within the meaning of the Human Rights Act 1998 (c. 42).
	(9)   The Secretary of State or the defendant may apply to the court which made the control order for it to be varied or discharged by further order.
	(10)   For the purposes of this Act, involvement in terrorism-related activity is any one or more of the following:
	(a)   the commission, preparation or instigation of acts of terrorism;
	(b)   conduct which knowingly facilitates the commission, preparation or instigation of such acts, or which is intended to do so; and
	(c)   conduct which knowingly gives encouragement to the commission, preparation or instigation of such acts, or which is intended to do so.
	(11)   Evidence established to have been obtained under torture shall not be admitted in any proceedings.'. [Mr. Grieve]
	Brought up, and read the First time.
	Question put, That the clause be read a Second time:
	The Committee divided: Ayes 194, Noes 284.

Question accordingly negatived.
	Motion made, and Question put, That clauses 1 to 13 stand part of the Bill, and That the schedule be the schedule to the Bill:
	The Committee divided: Ayes 281, Noes 198.

Question accordingly agreed to.
	Clauses 1 to 13 ordered to stand part of the Bill.
	Schedule agreed to.

Margaret Moran: I beg to report that the Committee has gone through the Bill and directed me to report the same without amendment. [Interruption.]
	Bill reported, without amendment.
	Order for Third Reading read.

Patrick McLoughlin: On a point of order, Madam Deputy Speaker. How can the Government Whip, the hon. Member for Luton, South (Margaret Moran), say that the House has considered the whole Bill, when quite plainly we have not?

Madam Deputy Speaker: The House has followed the programme motion on which it voted earlier today. I am afraid that that is the fact of the matter.

Douglas Hogg: Further to that point of order, Madam Deputy Speaker. I realise that the House has followed the programme motion, but we have not discussed the Bill. Should it not be in the power of the Speaker to inform the other place that we have not done that which we ought to have done?

Madam Deputy Speaker: The right hon. and learned Gentleman's point of order is not the responsibility of the Chair.

Peter Bottomley: Further to that point of order, Madam Deputy Speaker. Is it not a fact that the Whip had no choice and that it is a parliamentary convention that she utter such words? We should deplore the fact that this House has considered just one part of a major Bill. With an hour's Third Reading we are sending it off to the House of Lords, yet we have not had the chance to debate any other of its important parts.

Madam Deputy Speaker: I can only repeat my ruling on the matter, that the House has followed the programme motion which was agreed earlier today.

Charles Clarke: I beg to move, That the Bill be now read the Third time.
	Today's debate has been very important, and we have discussed the fundamental issuesthe freedom of the individual, the right and duty of the state to protect the people within its borders and their interests from attack and the balance to be struck between the two. The Government take the view that we must take all reasonable and practical steps to protect people in this country from those determined to destroy our way of life, and the Prevention of Terrorism Bill does precisely that.

Patrick McLoughlin: Will the Home Secretary give way?

Charles Clarke: No.
	The Bill provides the police and security services with another weapon in their armoury. It is designed specifically to deal with one of the most difficult and challenging problems facing ushow we should deal with those whom we cannot prosecute or deport, but who are nevertheless planning and plotting against this country.

Dominic Grieve: Will the Home Secretary give way?

Charles Clarke: No.

Alan Beith: On a point of order, Madam Deputy Speaker. The Home Secretary is purporting to describe a Bill, the clauses of which have not been discussed at all. It is difficult for the House to draw conclusions on Third Reading about the features of the Bill, when it has not had the opportunity to examine whether the clauses bear out the claims that he is making. Do you have an answer to that problem?

Madam Deputy Speaker: I remind hon. Members again that the occupant of the Chair follows the programme motion, which hon. Members agreed earlier today.

Charles Clarke: Control orders are preventive measures, not punishments, and they will be used carefully and only in serious cases. One has only to examine how sparingly the part 4 powers have been used to see that the Government take their responsibilities very seriously and act only when strictly necessary, and I believe that the same will be true of the new control orders.
	As I have indicated today, with legislation of this type I believedespite today's eventsthat there is great merit in seeking as wide a consensus as is possible across Parliament. To that end, I have today announced some changes which I propose to make to the Bill in the hope that such a consensus can be achieved

Desmond Swayne: On a point of order, Madam Deputy Speaker. Am I right in thinking that on Third Reading the Secretary of State is confined to the Bill as it now stands, not as it might become?

Madam Deputy Speaker: The hon. Gentleman is correct in his assumption.

Charles Clarke: I happily accept your ruling, Madam Deputy Speaker, because it allows me to move on to the main burden of the points that I want to make. We must remember why we are considering the Bill: we are considering it because the whole of this country, and not the Government or the Labour party, faces a terrorist threat. [Interruption.] Opposition Members do not accept the truth of that point. We face a terrorist threat, and those who think that we do not, who obviously include many Opposition Members, need to face the facts.

Patrick McLoughlin: Will the Home Secretary give way?

Charles Clarke: No.
	Al-Qaeda and its associates have a strategy to try to destroy the central themes of our democratic society, and this House must decide how best we can address that threat. In so doing, we must seek to analyse and understand the threat that we face, which we have donewe have laid the results before this House and are trying directly to assess the threat. Today's events clearly demonstrate that we must acknowledge that British citizens as well as non-British citizens are focused on the target of seeking to destroy through terrorist activity the society that we seek to represent.

Edward Leigh: Will the Home Secretary give way?

Charles Clarke: No, I will not give way. I gave way a great deal earlier today, but I will not give way at this point to pettifogging points of the kind that I think hon. Gentlemen are likely to make. We should discuss the arguments of substance around the Bill, and that is what I intend to do. The argument of substance

David Wilshire: On a point of order, Madam Deputy Speaker. If the Home Secretary is arguing that we should discuss the Bill, why has he denied us the time to do so? Can you not make a ruling that enables him to keep his word?

Madam Deputy Speaker: That is not a point of order for the Chair. I have already ruled on that. I call Mr. Secretary Clarke.

Charles Clarke: Thank you, Madam Deputy Speaker. It is important that we debate on Third Reading the reason why the Bill is necessary, and why I hope Members will vote for it. The basic reason why I ask the House to vote for it is that we face a terrorist threat from British and non-British citizensBritish as evidenced by the case of Mr. Badat today and of Richard Reid, and non-British as indicated by the events that took place in many other areas. We need to take the powers to address that threat.

Simon Hughes: Will the Home Secretary give way?

Charles Clarke: No, I will not. I acknowledge that in taking those powers, which are serious powers, and as I stated in the House on 26 January, are major issues for the House to address, we need to do so in a way that does our very best to respect individual liberty and the issues that arise in that regard.

Simon Hughes: Our very best?

Charles Clarke: Our very best.

Simon Hughes: Your very best.

Charles Clarke: I contend that we have done just that in putting forward the measures that we have in the House. I hope that colleagues in the House making the arguments about Third Reading, as they will, will also face up to the question of how the British state should respond to the threats against it, which really exist.

John Redwood: Will the right hon. Gentleman give way?

Charles Clarke: No. Should those threats be ignored, as I contend the Conservative Opposition seek to ignore them? Should the measures be amended, as the Liberal Democrats, in fairness to them, have argued throughout the debate? [Interruption.]

Madam Deputy Speaker: Order.

Charles Clarke: I conclude by referring to the core fact that we should all take account of what our electors sent us here to do. Our electors sent us here to protect the liberties of this country. [Interruption.]

Madam Deputy Speaker: Order. The House must come to order.

Charles Clarke: When asked in The Daily Telegraph poll today,
	Do you agree or disagree with the following statement? 'It may be necessary sometimes to take action against people who have not yet committed any offence, but about whom the intelligence services have evidence that they are planning an act of terrorism'
	a good question82 per cent. of Conservative supporters said yes, 13 per cent. of Conservative supporters said no. In the same way, when asked directly whetherthis is precisely the point made by a stream of Opposition Members during the debate
	In opposing the Government's Bill and saying that Parliament should take longer to consider the matter, the Conservatives are playing politics, rather than displaying a genuine concern for civil liberties.
	53 per cent. in The Daily Telegraph poll said yes, it is true that the Conservatives are playing politics and 29 per cent. said no. Finally[Interruption.]

Madam Deputy Speaker: Order. I understand that feelings are running high in the House this evening, but it does not help us at all when there is so much noise in the Chamber.

Charles Clarke: Thank you, Madam Deputy Speaker.

Peter Lilley: Will the Home Secretary give way?

Charles Clarke: No, I shall not give way. I have made that clear throughout.
	As for the charge made against the Government by many hon. Members that the Bill is further evidence that we are instinctively authoritarian and do not care enough about civil liberties, the poll for The Daily Telegraph shows that 33 per cent. of people agree with that, while 50 per cent. disagree.
	Why do I cite those figures in this Third Reading debate? For one simple reason[Interruption.]

Madam Deputy Speaker: Order.

Several hon. Members: rose

Madam Deputy Speaker: Order. I think that the Secretary of State has made it clear that he is not giving way.

Peter Bottomley: On a point of order, Madam Deputy Speaker. If the Home Secretary is going to keep asking questions, will he please say that they are rhetorical questions, to which he does not want an answer?

Madam Deputy Speaker: That is not a point of order for the Chair.

Charles Clarke: The hon. Gentleman makes a good point, except that he ignores the fact that I have given the answers of the British people, who reject the position of the Conservatives.
	I cite these figures because we must never forget, as we consider the very important legal and other arguments about the balance of security versus the issue of individual liberty, that what the British people want us to do is to protect their national security. I hope that this Bill will be given its Third Reading.

Dominic Grieve: I am truly sorry to see the Home Secretary mired in these fantasies and delusions of his own making. He comes to the House, presents a Bill and commends its Third Reading to the House, yet he knows that the debates in Committee have shown that it contains serious flaws that he has to rectify, and that his Government, through the Whips on his Treasury Bench, have, through their programming, denied the House of Commons any opportunity to consider its details.
	We are being invited to vote on a Bill having not considered the following matters: the obligations on the Secretary of State in connection with control orders; the content of control orders; the definition of terrorist-related activity; the balance of proof in relation to the making of control orders; the abolition of a distinction between non-derogating and derogating control orders; the duration of the Act, which some Members might think a most important issue; the content and delivery of a notice of modification of an order; the power of the court to make a conditional discharge; the mechanisms of appeal; the possibility of providing for costs and damages if wrong is done to the individual who is adversely affected by these measures; appeals relating to derogating control orders; reviews; and control order proceedings in the schedule, which, as Members have commented in the short debates that we have been able to have, is clearly a document of the mightiest mischief, because it provides a mechanism whereby this Governmentin whom I have to say that I no longer have any confidence whatsoever in terms of the maintenance of civil liberties in this countrycan produce whatever they like by way of rules of court in an area of novel power-making.
	How has this situation come about? Over the past week, the Home Secretary has weaved backwards and forwards between saying, when he wishes to appeal to one audience, that this is a non-party-political matter that requires serious consideration, and then denouncing one Opposition party or another for playing politics. Most of the time it has been my party that has been accused of playing politics, but when the Liberal Democrats have stood up against him, it is allegedly they who have been doing so.
	The shallowness of the way in which the Government have embarked upon this project is breathtaking. Although they have known since 16 December that their existing powers were wholly flawed, all they did in the intervening six weeks was to go behind the scenes and decide to try to cobble something together. Here was an opportunity for the Home Secretary, in the new job that he had acquired, to show that he would rise to his office. He could have approached any party for consultation on a pre-legislative basis, but no. He and the Prime Minister, having decided what they would do, graciously extended the opportunity to come into the big tent. However, the moment any objection is raised, one is cast into the outer darkness.

Simon Hughes: Does the hon. Gentleman agree that, from the time of the Anti-terrorism, Crime and Security Act 2001 and that of the imprisonment of people in Belmarsh, the Government have issued no invitation to take part in two or three-party proceedings to discuss what should happen if, ultimately, the courts ruled, as many of us argued, that their proposals were illegal?

Dominic Grieve: I agree with the hon. Gentlemanwhat he says is the absolute truth. I believed at the time that the lack of consultation was due to the bizarre and individual attitudes of the previous Home Secretary. However, it has become clear that he has spread contagion throughout the Government because the current Home Secretary has adopted all his worst vices in his approach to the matters that we are considering.
	What are we to make of the Home Secretary's coming to the Dispatch Box a few moments ago and reciting a series of mantras about the public opinion polls? I stress to him that 99 per cent. of people in this country might believe in the Bill, but I would not vote for it. Hon. Members who consider their consciences, the way in which the Government have gone about the matter and the enormity of what is involved, can readily dismiss the appeals to public sentiment, whether it is accurate or not.
	The Government are highly populist. The Prime Minister picks his position carefully. If he believes that he can take some shallow swing of the popular mood with him, that justifies his doing anything, however authoritarian, illiberal or undermining of the constitution. The long-term damage is enormous.
	I cannot understand how a Government who were elected for the first time in 1997 on the back of commendable promises about their standards of integrity could descend so rapidly into the gutter, in the way in which we have witnessed in the past few weeks.
	The Bill does not deserve a Third Reading. It is fundamentally flawed. It could be made tolerable, but we have been allowed to do nothing to enable that to happen. Every hon. Member should consider sending a signal to the other place that we need its help. Heaven knows, we do.
	We have demeaned ourselves in the past 24 hours. We have allowed a measure that is poor in quality, content and concept to pass through its Committee stage. We have one last opportunity to say that, although we are prepared to consider the problems that confront the Government, we are not willing to put up with such a dog's breakfast, which so undermines the basic principles of liberty in this country. I therefore ask hon. Members to vote against Third Reading and repeat the signal.
	We hear a lot about standing up to protect people. I do not need lessons from the Home Secretary about protecting people. I am satisfied that there is a threat to this country but one does not solve it by turning into a coward and dying a thousand deaths, which the right hon. Gentleman appears to invite the population of this country to do. It is possible to respond to and deal with terrorism in ways that are compatible with our freedoms and liberties. The Bill fails that test completely.

Tam Dalyell: Third Reading provides an opportunity to ask a question about the constitutional position in relation to Scotland. Jim Wallace, the Deputy First Minister of the Scottish Parliament, raised the prospect of his party at Holyrood triggering a constitutional showdown with the UK Government over the latter's plans for house arrest without trial for terror suspects. He said that the Liberal Democrats would refuse to support aspects of the Bill that fell within the competence of Scottish Ministers and on which Holyrood had to agree, courtesy of a device called a Sewel motion, to allow Westminster to legislate for the whole of the UK. That would mean that, if it came to a Holyrood vote, only Labour MSPs would be certain to support the Sewel motion supporting the Home Secretary. Frankly, I would add that some Labour MSPs would not be dragged by wild horses into such a Lobby.
	That would mean that, with the main parties also against the plans, the Home Secretary would fail to secure the agreement of enough MSPs for the legislation to cover Scotland. The UK Government would have no choice but to ignore the views of MSPs and, for the first time since devolution, impose legislation in the teeth of Holyrood opposition. I ask the Home Secretary for his comments on this serious situation for us north of the border.

David Heath: This is a debate of the utmost gravity on a matter to which the House should give the highest priority: not only the safety of the people of this country but their liberties. I accuse the Government of dereliction of duty over the past three years for not having sought an acceptable formula to deal with a threat that we acknowledge. I find it incredible that a Bill of this importance should have received no Committee or Report stage today. Instead, it received a mutant form of Second Reading for the second time, which will have to be repeated when the Bill comes back from the Lords in unrecognisable form. A number of new clauses and 227 amendments have simply not been debated today. When will the House get up off its knees and tell the Executive, Enough is enough. We will not put up with abuses of this kind?
	We are told that the Home Secretary has made a serious concession by accepting the need for judicial oversight of derogating control orders. We are grateful for that; it is a measure that we have argued for and that we believe should be in place. It cannot be right that a citizen of this country should be put under house arrest by the diktat of a member of the Executive, rather than by the courts. Perhaps the Home Secretary believes that that concession is sufficient to win the support of the House, but if he was not disabused of that idea by the debate, I hope that he was disabused of it by the result of the Division and the reduction in his Government's majority. That will send the clearest possible signal to the other place that there is a high level of dissatisfaction with the proposals on both sides of the House.
	That is hardly surprising. We have not even seen the concession that we have been promised. The Home Secretary could not bring himself to table amendments on the provision in this elected House so that we could debate it. It is based on a prima facie hearing before a court in which he originally said, with a slip of the tongue, that consideration would be on the balance of probabilities. He then corrected himself and said that there would need to be reasonable grounds to suspect that an individual had been involved in terrorism. That is exactly the low level of proof that has given us so much cause for concern already.
	We then come to the argument about non-derogating orders. Most people outside the House will not have a clue what the distinction is between a derogating order and a non-derogating order in the context of the Bill. I have to say that many of us inside the House do not have a clue either. We have heard cogent contributions, particularly from Labour Members, pointing out the deficiency of the proposals in regard to appeals and to the definition of a derogating order.

Douglas Hogg: Does the hon. Gentleman agree that that difficulty of understanding may explain why 59 Labour Members voted against the Government in the first Division, including seven Privy Councillors, the Father of the House and three former Cabinet Ministers?

David Heath: I thank the right hon. and learned Gentleman for putting that on the record, because it makes it clear that for each hon. Member who voted against the Government there was at least one, perhaps two, who disagreed with what they intend to do. If the Government think they can get the Bill through the House in this form, they are mistaken: it will not pass.
	I have heard the Prime Minister trying to explain the Government's position, and trying to win the favour of the country in, apparently, an all-out bid to impress readers of The Daily Telegraph, as we just heard from the Home Secretary. His basic argument boils down to this: What would people think if we knew that someone was a danger to the country and did nothing about it, and then an atrocity was committed? I would ask the Prime Minister and the Home Secretary this in return: what would people think if the Home Secretary knew that someone was a danger to the country, but did not have the tools to do anything about it because of a totally arbitrary distinction between derogating and non-derogating orders and between whether he goes to a judge one week later or in the first instance, and an atrocity was committed?
	This is nonsense. It is possible for us to reach a consensus; why on earth are the Government refusing to allow that to happen?

David Winnick: Following the intervention by the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg), may I say that I speak purely and simply for myself? As one of the 59 Labour Members who voted as we didI make no apologies for that; far from itI shall vote for Third Reading for reasons given by the Home Secretary, but I shall do so in the hope that, one way or another, what we want and what the hon. Gentleman wants in terms of control orders will be brought about.

David Heath: I hear what the hon. Gentleman says, and I note his intention. I am grateful for his support in the Lobby earlier, but I am saddened that he now feels able to support the Bill in a triumph of hope over experience. I am surprised that he puts his trust in an unelected House rather than in this elected House of Commons to get the legislation right.
	There are many points that we have not had an opportunity to debate: the standard of evidence required to deprive someone of his liberty, or restrict his liberty; the rules of court and the admissibility of evidence, and the degree to which evidence can be shared. Of course we understand that there are matters that it would not be proper to share with the accused in this instance because of the risk to security, but it would not be impossible to devise protocols allowing people at least to know the broad outline of the charge against them. That is the basis of our judicial system, and it is not one to be lightly thrown aside. We have had no opportunity to make prosecution under the laws of the landin a proper court, conducted through the Director of Public Prosecutionsa priority in statute.

Jeremy Corbyn: As the hon. Gentleman knows, I am fundamentally opposed to the principle of Executive detention and Executive orders, but his argument has lost me slightly. Is he saying that the Liberal Democrats do not want defendants to have access to the evidence against them?

David Heath: That is precisely the reverse of my position. I shall leave it at that.
	I also think it important to ensure that the conditions of an order are intelligible to the person on whom they are imposed. Many such people will not have English as a first language, but there is no such provision in the Bill. The hon. Member for Beaconsfield (Mr. Grieve) raised another important point, about the temporary nature of the legislation. Surely we do not envisage the state of emergency described by the Government as being of indefinite durationor perhaps we do. If so, the Bill deserves better scrutiny; if not, there should be a clear limit to its duration.
	In short, the Bill as it is formulated simply will not do. I repeat that we recognise the dangers that the Government describe. We recognise the need to ensure that our citizens are properly protected. We are prepared to continue the dialogue and hope that it will be more fruitful than it has so far been, while acknowledging the very small movement that the Home Secretary has accepted. We believethis is a fundamental principlethat the safety of the people is paramount, but the liberties of the people are also paramount. This House and the Executive have to find the balance. Frankly, this is no way in which to do it.

John Denham: In the 12 years or so that I have been in the House, the number of days on which what happens in the House of Commons Chamber seems to matter have each year declined dramatically, so it was fun to be here today and last Wednesday, when one got the sense that an actual debate was taking place.
	It is interesting to consider how today's and last week's debates will look in two or three years. What conclusions will we draw? I suggest that we will draw a number of conclusions. One will be that some of the complaints were overstated. Our ability to restrict the liberties of citizens and to detain people without trial will be considerably less than that of France, Spain or other countries similar to ours, whatever the outcome of the Bill. That has sometimes been lost sight of in the debate on the current legislation.
	Secondly, we may recognise that, in our society, there are many circumstances in which people's liberty is restricted without their appearing before a judge for quite some periodI am thinking of the Mental Health Act 1983 as well as of police powers. So let us put the matter in perspective. Some of the discussion today, which has focused so much on judges, has taken us away from the more fundamental debate, which appeared only from time to time: whether it is right at all to have the sort of restrictions on freedom and liberty that are implied by control orders. I believe that that is necessary and that the terrorist threat justifies it. It is a shame that the inability to resolve the issue about judges has stopped that being the central focus of today's debate because, for a lot of people in the Conservative party and for some Labour Members, that is an even more fundamental issue.
	Thirdly, I am sure that the Bill will be amended in another place and we will revisit it. Clearly, it is not capable of giving us the structure that we need to deal with these terrorist issues for the future. We must ensure that, over the next two or three years, that structure is put in place. If I am right in thinking that there is a group of individuals against whom we cannot put together a court case for a criminal hearing and we have to take action, the real challenge is that neither the process of the Home Secretary looking at the evidence nor a judge having it presented to him or her will prove to be adequate. Where the security services produce evidence against an individual, it is important to interrogate that evidence as effectively as possible, to consider not just a control order but the other strategies that could be used against that individual, and to weigh the overall national security risk.
	I believe that that role can be performed only if there is a procedure that takes on board some of the elements of the investigating magistrate that one has in other jurisdictions. Judges will be able to consider whether a control order should apply. It is much more difficult for them, in any of the proposed procedures, to consider that option against the other options and strategies that could be considered for dealing with that individual. I tabled amendments, which we did not reach, to expand the role of the Director of Public Prosecutions, not simply so that there was a public certification of the inability to prosecute; it was with a conscious eye on the need to develop some investigative capacity within the state, perhaps with a judicial role, to carry out the type of investigation that is necessary. I am absolutely convinced that that is the direction that we need to explore and move in over the next couple of years. We will make what progress we can on this Bill and get it into the best possible form, but I doubt that we will achieve that by Tuesday.

Charles Clarke: Does my right hon. Friend accept that I share precisely his view that we need to address this issue in the round? He has explained the situation admirably, and the time scale of two to three years that he sets out is the right way to proceed. We cannot deal with this issue immediately, and the direction that he has describes is entirely correct.

John Denham: I am grateful to my right hon. Friend. When the Bill is debated in another place, I hope that the Minister with responsibility for it will be able to give a little more in the way of a definite commitment in that direction. Many of us would be happy with the Bill if we thought that further movement would be made along those lines.

Simon Hughes: Does the right hon. Gentleman accept that the logic of his argument is that we should seek to deal with the problem that will present itself in March, when we will be unable to renew an illegal law and people will have to be released from prison? If we limited ourselves to doing that and nothing else, we could give proper time in due course to the wider issues that he talks about.

John Denham: I do not entirely agree with the hon. Gentleman, and for this reason. The law that we would have to renew in March, but which we cannot because of the Law Lords' judgment, applies solely to foreign nationals. I do not necessarily believe that we have a year or two before needing to put in place a framework to deal with British citizens who might be involved in terrorism; some moves in that direction are necessary now. But I say with all due respect to my right hon. Friend the Home Secretaryhe has approached this entire debate with great openness, but he needs to respond furtherthat although he has at no stage proposed anything that deserves the name Executive detention, the proposal looks like that and can be presented as such. We need a proposal that cannot be described in those terms, because the wider misinterpretation of the Bill will be too damaging. Our constituents must not be made to feel that their liberties are being restricted by Executive action.

Lynne Jones: Is my right hon. Friend not concerned about paragraph 8(2) of the schedule in particular? The effect of non-derogating control orders not being subject to prior judicial decision will be that, even if an order is quashed or a court refuses to renew it, the Home Secretary will be able to exercise his power to make a new order in respect of the same mattersin whole if necessarybecause he failed to achieve such an order in the first place. In other words, it is rather like the cat and mouse Act, in that the Home Secretary can keep bringing the matter back before the courts. In the meantime, the person subject to the control order has had their liberties infringed.

John Denham: I cannot answer for the Home Secretary, but I believe that he said earlier that he is willing to look at the schedule's wording. However, it is a shame that that has to be done in another place, rather than here. Round-tripping of the sort that my hon. Friend describes would clearly be unacceptable, because that would be getting into the territory of Executive action untrammelled by judicial review. [Interruption.]
	I hear a number of Members asking how I can say that the proposal does not constitute Executive detention. A process initiated by the Home Secretary, swiftly followed by a judicial process, cannot be equated with those regimes around the world in which people are locked up simply on the say so of politicians. To make that equation is to distort what has taken place; none the less, the danger that the Government must recognise is that that is how the Bill will be presented in the popular language, unless it is further amended. The only way out of this situation now is to have an initial judicial role for all types of control order.
	I finish on this note. However hard we now work to get the Bill in order, it is only a stop-gap measure. It cannot provide the lasting framework that we need to deal with a problem that, I am afraid, will be with us for many years.

Peter Bottomley: The right hon. Member for Southampton, Itchen (Mr. Denham) has done the House a service in talking about the Bill as part of the approach that the Government and Parliament need to adapt to the problems of terrorism and justice. One of the issues that matters to me is what happens when someone becomes subject to a control order. Who can speak for them; who can advise them; who can raise queries about them on the basis of information?
	In evidence provided to the Select Committee on Constitutional Affairs six days ago, the special advocates said that they were first briefed by a man from the Treasury solicitors who was not security cleared and who was then unable to provide them with information relevant to the security problems that had to be faced. Even if we believe that 95 per cent. of the people who are fingered or targeted under the legislation are in some sense guilty or rightly suspected, let us assume that neither the Government nor their agencies are 100 per cent. correct. It seems that a special advocate, who is appointed not by the person under suspicion but by the Government, is not allowed to resign. That may be a technical issue for some people, but it really matters.
	It is significant that the sort of terrorist suspect that we saw during the IRA troubles could secure a lawyer such as Gareth Peirce to establish alibis and demonstrate that suspicions were not well founded. If that is to be thrown away, I firmly believe that the House has a duty not to leave the Bill to the other place, but to call the Government, the Leader of the House and the Chief Whip to account and invite the Home Secretary to explain openly the problems that justify the approach that he is adopting in the Bill.
	The truth is that some of us, probably including the Leader of the House, took pride in breaking control orders when they were applied to people in South Africa or when prevention of terrorism legislation was used to control people such as the late Reverend Beyers Naude, or when the defence and aid fund was used to channel funds from Scandinavia, north-west Europe and this country in order to defend people in South Africa. Yet the legislation that we are now proposing will prevent people from being defended in a similar way because they will not have been accused. People will not know what they have been charged with.
	I put that simple point to the Home Secretary and Labour Members, including the 59 who did not vote with the Government in the Lobbies this evening, and to those who should have crept in to join the 59. I hope that those creepers will feel ashamed of themselves for their inaction this evening. Just eight more hon. Members would have changed the result of the vote. I hope that the media, who occasionally watch our proceedings, will grasp the significance of how close the Government came to defeat on a simple point of justice and law. The Government have got it wrong.
	The Government should not simply pass the buck to the House of Lords. They should come back before this House and test the arguments again. They should reflect on what the Select Committee has suggested. I hope that they are strong and brave enough to improve the Bill through proper debate and agreement. They need to secure the best possible protection against terrorism without throwing justice and the tenets of democracy out with the bathwater.

Mark Fisher: I am grateful for the opportunity to speak briefly in the debate. I want to say that none of those who voted in favour of the amendment proposed by my hon. Friend the Member for Bridgend (Mr. Griffiths) and against the Government on various other provisions are unaware of the dangers of terrorism. Indeed, I do not believe that a single Member is complacent or soft on terrorism. We are all, frankly, frightened and concerned about it. The idea that any one of us cares more about the security of this country than anyone else is a wrong-headed mistake. Every Member cares deeply, on behalf of constituents, about the security of this country and would do nothing to put it at risk.
	Nevertheless, as the Home Secretary has seen, many of us remain unconvinced by the Bill or the way it has been conducted. My right hon. Friend the Member for Southampton, Itchen (Mr. Denham), whose contributions on both days have been distinguished and extremely thoughtful, was typically generous to the Government in saying that the detention orders did not really amount to Executive action. Whether my right hon. Friend is right or wrong, the Home Secretary has moved some way today. Given that he has done so, many Members are baffled   about why he cannot go the whole way and move on both derogating and non-derogating orders. It is incomprehensible.
	The Home Secretary was wholly unconvincing in his answers today, and it is not at all brave of me to predict that the Bill will be changed in the other place. I do not know why the Home Secretary insisted on resisting that change here, in the democratic Chamber of our Parliament, when he must know that his position is illogical and will not do. It will be thrown out, and we will back here again in a few days' time. He will then have to explain to the House why he has had to think again and why the Executive will not be involved in the decision on either type of order. It baffles me why he has not given way on that today, but I am sure that that will change. There is no point in getting heated about it, because it will change.
	Many of us have been so distracted by that issue today that we hardly noticed that we did not have a chance to express our grave concerns about evidence in these matters. That part of the Bill has not even been explored. I would have thought that every Member of this House, regardless of party politics, must be concerned about somebody's liberty being put at risk without their even knowing of what they are accused. I accept that the Home Secretary will say, Ah, these are very difficult matters. These are very dangerous people. Well, we came across those issues in Northern Ireland and nobody pretends that there is an easy call to make, but surely we can do better than we have done with this Bill? There must be avowals that we can put in place to allow a judicial process to hear the evidence and let the accused know of iteven if only in the most general way, as my hon. and learned Friend the Member for Redcar (Vera Baird) said. It is essential that someone on a charge that threatens to remove their liberty should have the right to hear the evidence against them.

John Redwood: Is not there also a danger to our security if one of these orders is imposed too early on, say, a junior member of a network, before the intelligence services have learned as much as they might do and before they have evidence to bring a charge of conspiracy? We would then be in a worse position because the other members of the network would be alerted.

Mark Fisher: I am grateful to the right hon. Gentleman, because that is a very good point. Indeed, my right hon. Friend the Member for Southampton, Itchen made a similar point. That is a concern that is shared across the House, and it is a valuable contribution to the debate.
	The issue of evidence, and the accused's right to hear it, is difficult, but we must be able to do better than the present Bill. The same applies to intercept evidence. It is a difficult issue, as the Home Secretary rightly pointed out to us, but we have not really attempted to grapple with it at this stage. We must do so.
	Parliament has been bounced. We have had three years to think about this issue and we have failed to do so. That is not only the fault of the Government, because Members have not bombarded the Government with demands for debates or further legislation. Many of us, on both sides of the House, knew that this issue was simmering, but we, just as much as the Government, failed to do anything. However, we have undoubtedly been bounced in the past week. The Bill was published on 22 February, and only six days later we have had a rushed Second Reading andto the huge discredit of this Chambera farce of a Committee stage, in which we have not properly considered the Bill. That is what we are sent here to do by our constituents. We are sent here to scrutinise legislation and to try to make our laws good, sensible and workable. We have failed tonight.
	The Government did not help by bouncing the Bill through on a ridiculous programme motion, but we had the ability to throw that out. We could have said to the Government, Don't be ridiculous. On a Bill of this enormous constitutional importance, we cannot accept a ridiculous timetable like that. We can certainly warm our hands at the indignity of the Government, who have imposed the measure on us, but we, too, are to blame because it was in our hands to throw out that thoroughly discreditable programme motion. We are as much to blame as the Government.

Anne Picking: My hon. Friend is discussing the merit and credit of the House, but does he agree that the House took a decision? He may think that the decision was discredited and that it was not what he wanted to hear[Interruption.]

Mr. Deputy Speaker: Order.

Anne Picking: Thank you very much indeed, Mr. Deputy Speaker.
	Surely to goodness, my hon. Friend the Member for Stoke-on-Trent, Central (Mr. Fisher) must agree that democracy and the majority prevailed; and as much as he disagrees with it, that is the will of the House. It was done correctly through proper procedure. There was a vote and a majority decision. What is the point in harping on about it?

Mark Fisher: I hear what my hon. Friend says and, of course, she is right: the House voted. I was saying that the House did not think carefully enough when it voted.
	On Second Reading, the House was pretty empty. I made a short contribution at the end of that debate deploring the fact that so few Members were in attendance for such an important Bill. That debate was of high quality, as was the debate today, when the attendance was much better. The House comes out of that better today than on Second Reading.

Michael Jabez Foster: Does my hon. Friend understand how distressing and upsetting it is for Members who disagree with him intensely? Many of us fully support the Bill and have no problem with it at all. He says that no thought has been given to it, but many of us have given enormous thought to the Bill and we simply think it is right.

Mark Fisher: My hon. Friend misses my point. The Bill is of enormous importance. It started by[Interruption.]

Mr. Deputy Speaker: Order. I think we ought to finish[Interruption.] Order. I think we ought at least to finish the day in an orderly manner.

Mark Fisher: My hon. Friend the Member for Hastings and Rye (Mr. Foster) misses my point. Of course, Members on both sides of the House are entitled to vote and to believe passionately what they believe. We are all honourable Members and we have serious views. I am not complaining that my hon. Friend does not feel the same way about things as me. I am saying that the House has not had time to go into the detail of the Bill.
	There is a schedule that explains how control orders work, but we have not had a momentnot even a minuteto discuss it. These are serious matters, but we have not taken them seriously. I fully respect my hon. Friend's views and opinions, but we have not scrutinised a hugely important Bill. We have not done ourselves credit.
	We are sent here to scrutinise. I feel that on these Benches we have put too much blind trust in party and have not trusted enough in our own consideration. However, everybody comes to their own view. It is not yet beyond the wit of the House to get this right. The extraordinary thing about the debate is that beneath the criticism and, sometimes, the bad temper there is clearly a will on both sides of the House to get the Bill right. There were flickerings of that when the Prime Minister and the Home Secretary invited the other parties to Downing street. It is clear that everybody, because they are concerned about the threat of terrorism, wants to try to find a solution, but that will not be achieved by the adversarial process inherent in both our judicial system and the House; it must be through consensus and debate. Intercept evidence in court and other matters are difficult.
	We shall not reach a solution by opposing each other. The Government must go into discussion with the other parties. I detect good will from all the other parties in the House to try to find a solution and a compromise.
	I do not pay attention to the opinion polls that the Home Secretary was shoving down our throats. I do not think that the public will take it kindly if we come up with ill considered, ill-thought-out legislation. They will not respect us. We should give ourselves the time to come up with the difficult and quite subtle things that are needed to sort out these problems. I believe that we can do that, but it is ridiculous that we are now dependent on the other place. We ought to be ashamed of ourselves, and we ought to learn from this and ensure that the House insists in future on its will to have time to debate important legislation and the wit, good will and respect for one another to come to difficult, but possible, compromises.

Richard Shepherd: The good hon. Member for Stoke-on-Trent, Central (Mr. Fisher) is making a bid to become Home Secretary, but that was much more in evidence with the distinguished speech by the right hon. Member for Southampton, Itchen (Mr. Denham). However, they are confronted by the same question as all other Members are confronted with: should the Bill, as unamended, have a Third Reading? That is the question. The Home Secretary's long exegesis about the dreams that he will have down in another place is irrelevant to the vote that we take tonight. Do we, the House of Commons, approve of the Bill that we have been discussing today? It is simple as that.

Edward Garnier: Will my hon. Friend give way?

Richard Shepherd: I hope that my hon. and learned Friend will forgive me if I do not give way, because I want to concentrate our minds on exactly what we are doing.
	If we vote for the Bill, it is an expression by the House that it believes in every clause and detail of it. All the arguments that we have heard today, including the exegesis by the Home Secretary, have demonstrated again and again in which way and what way the Bill is flawed. Some of us feel deeply and passionately that it is flawed because it touches on the very intimacy of the relationship of the British citizen to the British state. It suggests fundamentally and profoundly to many of us that the due process of law is that we should know with what we are charged, and we should be able to answer that charge before we lose our liberty. That is so profound and fundamental that the justification for change must be clear and overwhelming. That is not in the Bill.
	What the Bill says relates to orders. As the hon. Member for Stevenage (Barbara Follett) so compellingly told the House last Wednesday, the pass laws of South Africa stand out as a beacon of what we should not do. The actions taken by Mr. Mugabe in pursuit of his ends or by the Burmese junta are not appropriate for this country. That passionate belief has been expounded across the Floor of the House both last Wednesday and again today, but we come back to what we do when the vote on Third Reading is called.
	The Bill must not be passed even in the terms that the Home Secretary has presented us with this afternoon, when he says that this is not the Bill that the country will be presented with if it becomes an Act of Parliament. If that is the case, how can we be self-respecting and stand up for the rights and appropriateness of the House by voting for the Bill when we know that it is not the Act of Parliament that will pass? So we should, in our sense of being who we are as a Parliament, reject it.
	It being one hour after commencement of proceedings on the motion, Mr. Deputy Speaker put forthwith the Question already proposed from the Chair, pursuant to Order [23 February and this day].

Question put, That the Bill be now read the Third time:
	The House divided: Ayes 272, Noes 219.

Question accordingly agreed to.
	Bill read the Third time, and passed.

DELEGATED LEGISLATION

Mr. Deputy Speaker: I propose to put together the Questions on the motions on constitutional law.
	Motion made, and Question put forthwith, pursuant to Standing Order No. 118(6) (Standing Committees on Delegated Legislation),

Constitutional Law

That the draft Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 2005, which was laid before this House on 18th January, be approved.
	That the draft Scotland Act 1998 (Modifications of Schedule 5) Order 2005, which was laid before this House on 9th December, be approved.
	That the draft Scotland Act 1998 (Modifications of Schedule 5) (No. 2) Order 2005, which was laid before this House on 25th January, be approved.[Mr. Jim Murphy.]
	Question agreed to.

Northern Ireland

Motion made, and Question put forthwith, pursuant to Standing Order No. 118(6) (Standing Committees on Delegated Legislation),
	That the draft Drainage (Amendment) (Northern Ireland) Order 2005, which was laid before this House on 26th January, be approved.[Mr. Jim Murphy.]
	Question agreed to.

REGULATORY REFORM

Motion made, and Question put forthwith, pursuant to Standing Order No. 18(1) (Consideration of draft regulatory reform orders),

Prison Officers (Industrial Action)

That the draft Regulatory Reform (Prison Officers) (Industrial Action) Order 2005, which was laid before this House on 11th January, be approved.[Mr. Jim Murphy.]
	Question agreed to.

EUROPEAN UNION DOCUMENTS

Motion made, and Question put forthwith, pursuant to Standing Order No. 119(9), (European Standing Committees),

Financing of Agricultural andRural Development Policy

That this House takes note of European Union Documents No. 11557/04, draft Regulation on the financing of the Common Agricultural Policy, and No. 11495/04 and Addenda 1 to 9, draft Regulation on support for rural development by the European Agricultural Fund for Rural Development; and supports the Government's objective of encouraging and sustaining development in rural areas through diverse, competitive and sustainable farming methods, in line with Common Agricultural Policy reform already agreed in June 2003 and consistent with the wider EU's shared rural development and environmental priorities.[Mr. Jim Murphy.]
	Question agreed to.

BUSINESS OF THE HOUSE

Ordered,
	That, at the sitting on Monday 7th March, notwithstanding the provisions of Standing Order No. 16 (Proceedings under an Act or on European Union documents), the Speaker shall put the Questions necessary to dispose of proceedings on the Motion in the name of Mr Stephen Timms relating to Future European Union Finances not later than three hours after their commencement; and the proceedings may continue, though opposed, after the moment of interruption.[Mr. Jim Murphy.]

MENTAL HEALTH (NORTH-EAST CAMBRIDGESHIRE)

Motion made, and Question proposed, That this House do now adjourn. [Mr. Jim Murphy.]

Malcolm Moss: I am most grateful to the House for this opportunity to raise this important issue in my constituency. At the heart of this debate is the proposed closure of an elderly mental health in-patient unit with 16 beds at a facility known as the Alan Conway Court at Doddington hospital near March.
	I understand the situation in which the Minister finds himselfI am most grateful to him for replying to the debatein so far as I have been in his position. I was the Minister responsible for health in Northern Ireland for two and a half years before 1997, during which closures of hospitals and facilities came up fairly regularly, so I am fully aware of such situations and sympathise with all those from the Minister downwards who have to deal with often difficult decisions. I also recognise that the Minister's response would normally be, That's all very well, but we devolve these decisions to the strategic health authorities and the primary care trusts, and the closure of a small hospital in someone's constituency doesn't really come within my ambit.
	However, it is important that I raise the issue not just because it is very important to those in my constituency who are concerned, but because it reflects a more general situation in the health service, particularly in the provision of mental health services throughout the country. Lessons of a more general nature could be learned as a result of looking at and focusing on what has happened in this case, as there are mitigating circumstances surrounding the proposed closure. In microcosm it highlights some of the problems that are being faced and dealt with by many of those running mental health trusts throughout the country, and by those in the PCTs whose responsibility is on the one hand to deliver Government mental health policy and on the other to make extremely difficult decisions about their overall funding positions.
	There are two key players in the scenario. First, there is the amalgamated Cambridgeshire and Peterborough Mental Health Partnership NHS Trust, which according to internal memorandums inherited a deficit of 2.5 million at inception. After a very short period in operation, the predicted deficit for the current financial year had risen to some 4.5 million. I have in front of me some notes from a board meeting held on 30 June 2004, which state:
	The Trust has an underlying deficit of over 4 million arising from an inherited deficit (2.5 million) and cost pressures associated with national mental health strategy and technical and fiscal policy changes. Recent surveys show that most mental health Trusts throughout the country face the same problems . . . local funding proposals do not enable the Trust to meet its statutory obligation to achieve financial balance and to address nationally determined priority service developments without reducing some of its existing services.
	So, there are two points from the board itself: cost pressures in meeting Government targets and policy changes, and the fact that it does not have the financial resources to meet them without reducing some of the existing services.
	The trust's financial position was complicated by its history. Its services were formerly provided by seven predecessor organisations, some of which had dissolved, such as Lifespan Healthcare NHS Trust and North West Anglia Healthcare NHS Trust, but most of which have continued to provide other servicesfor example, Addenbrooke's hospital and Hinchingbrooke Healthcare NHS Trust.
	The process of identifying the direct and indirect costs of mental health services in those organisations was extremely complicated and it was accepted that some costs could not be released in the short term and that some might never be realisable. In January 2004, at a key meeting with the local PCTs and the SHA, it was agreed that the trust had inherited a deficit of 2.5 million and outline proposals were agreed for dealing with it.
	In a written answer, I was surprised to learn that the Department of Health does not seem to realise that the amalgamation to form the new trust included not only Lifespan Healthcare NHS Trust and North West Anglia Healthcare NHS Trust, but five other hospital trusts within the county. This is the written answer that the Minister signed off:
	I am advised that Cambridgeshire and Peterborough Mental Health Trust
	a clever use of the word advised
	did not inherit any deficit from its predecessor bodies. Surpluses were reported in both 200304 and 200405.[Official Report, 3 February 2005; Vol. 430, c. 1118W.]
	With the best will in the world, my constituents might give a bit of fair wind to the local trusts in reaching certain conclusions, but when they see and read that the DOH does not know what is going on in Cambridgeshire, they are more inclined to think that the wrong decisions have been taken.
	The second player in this scenario is East Cambridgeshire and Fenland Primary Care Trust. In the current year, it is 7.9 million below its formula funding level, which is about 6 per cent. below target, and it is been well below its funding formula target since its inception. Initially, it was funded by the area health authority, and in the past two years the DOH has funded it, but it has always had a funding shortfall. Both the two key players making the decision are stressed financially. One has got a fairly substantial deficit and the other has been trying to deliver Government policy with a 5 to 6 per cent. shortfall in its funding formula since it was formed.
	I accept that the Government have recently addressed the problem of the underfunding of PCTs. It would be churlish for me not to welcome the substantial increase that the East Cambridgeshire and Fenland PCT will receive for the next two years, starting next yearour PCT has received one of the largest increases, which is welcome. At the end of those two years, however, the PCT will still be 3.5 per cent. below its funding level, which is better than 6 per cent. below, but I calculate that it will still be 7 million in deficit by 2007. That ongoing funding shortfall will not help to fund current service pressures from providers such as the mental health trust.
	The reconfiguration of the area health authorities and the PCTs in my constituency meant that the new PCT inherited two in-patient elderly mental health units, one in Wisbech at the Queen Elizabeth hospital, King's Lynn, which was in the North West Anglia Healthcare NHS Trust area, and the other at Alan Conway Court, Doddington hospital, near March. Some of the problems have arisen as a result of Government policy and tinkering with the organisation of health care delivery in places such as Cambridgeshire with the development of PCTs and the reconfiguration of the Cambridgeshire Mental Health Trust. That has meant that the current PCT inherited two elderly mental health in-bed units, perhaps in the wrong geographical locations.
	The trust approached all the PCTs in Cambridgeshire to help fund its deficit. Without spare fundsas I pointed out, the East Cambridgeshire and Fenland PCT was well below its funding targetit was forced to consider service reductions to help balance the books of the mental health trust. That was confirmed to me in a letter from the chief executive of the Cambridgeshire Mental Health Trust in June 2004. The proposal was to close the Alan Conway Court facility, thus saving some 500,000 in operational costs for the trust. The PCT would save some 350,000 because it would reinvest 150,000 of that 500,000 to boost the community mental health service which, as the report pointed out, was under-developed in that part of Cambridgeshire.
	The report from the Cambridgeshire Mental Health Trust suggested that the decision to close the unit was predicated not solely on the requirement to save money, but on the assessment that the East Cambridgeshire and Fenland PCT area was over-provided with in-patient beds and under-provided with community mental health services. That is somewhat surprising, because a recent National Institute for Mental Health in England survey demonstrated that the trust as a wholethat is, the Cambridgeshire Mental Health Trusthas fewer acute beds than the average for the strategic health authority, and that the authority has fewer beds than the average for England. Even so, the number of people who need to be sent to expensive out-of-county placements, often outside the NHS, is comparatively low. Community staffing levels are also significantly below average.So the report from the National Institute for Mental Health in England states that although there might be more beds in one PCT area, the county as a whole is rather low on acute beds. I am puzzled why the conclusion has been reached that we could close a 16-bed unit when the evidence points in an entirely different direction.
	Another important consideration is the population profile, which in the case of East Cambridgeshire and Fenland is skewed towards an elderly population. After Greater Peterborough, the PCT area had the second highest population over 65 in the whole county. It also had the highest proportion of over-65s to total population of any PCT and was also the fastest-growing group of over-65s. Perhaps the decision was based on short-termism rather than looking at the future, even the immediate future. There is a fear that the facility may be closed this year or next year, and a few years down the line we will say, Pity we did that because we need such a facility for our growing population.
	The point is emphasised by the letter I received recently from Lord Rooker, dated 18 February. I quote:
	I am writing to you in relation to the Department of Health announcement on 9 February about their revenue allocations to Primary Care Trusts for 2006/07 and 2007/08.
	I have been working closely with John Hutton, Minister for Health, and we are fully committed to establishing healthy sustainable communities in the growth areas.
	He continued:
	  The Department of Health has now included a Growth Areas Adjustment in determining 2006/07 and 2007/08 target allocations to Primary Care Trusts in the Growth Areas that will shortly experience additional burdens from high levels of growth . . . The Growth Area Adjustment is of course one element in working out the final resource allocation for each PCT, but it is important that we give proper recognition to the needs of growing communities.
	In population terms, Cambridgeshire is probably one of the fastest-growing counties in the country, with a disproportionately fast-growing elderly population. It is a very attractive area in which to settle. One can sell one's house in London or the south-east, buy a much cheaper house in the fenland area, and put the rest in the bank. Large numbers of people are retiring to the area, and they will eventually feed through into putting greater pressure on resources of this kind.
	Another ingredient in the equation is the fact that when East Cambridgeshire PCT amalgamated with Fenland PCTthere are so many amalgamations going on that one sometimes gets rather confusedan arrangement was made whereby elderly, mentally infirm patients, some with dementia or Alzheimer's, would go to Fulbourn hospital on the edge of Cambridge. It is felt in my constituency that were that arrangement not in place, the facility at Alan Conway Court at Doddington could just as easily meet the requirements of some of the people who live in east Cambridgeshire. In some respects, we seem to be robbing Peter to pay Paul. The Alan Conway Court facility is to close, while the Fulbourn unit in Cambridge is sustained by the purchasing of services from the amalgamated trust.
	Local people are very disillusioned with the so-called consultation process, because once it had begun they were told that they were not being consulted on whether the unit at Alan Conway Court should close, but on the implications and ramifications of such a closure. In other words, the closure seemed to be a done deal. It will therefore come as no surprise that this has left a very bitter taste.
	More recently, over the past year the county council's health and social care scrutiny committee and the four former area health and social care scrutiny panels have considered in detail the mental health services in the county. The scrutiny committee said:
	The Government's National Service Framework . . . for mental health requires the development of a range of specialist community services: early intervention, crisis resolution and assertive outreach . . . There are two key challenges associated with the development of these services in Cambridgeshire.
	First:
	The need to maintain existing levels of acute provision until community services are developed, at a time of great budgetary pressure.
	The second key point that it mentions is:
	The need to develop services which both comply with the requirements of the NSF and also reflect local needs and the diversity of the County.
	The health and social care scrutiny committee recognised that all health partners in Cambridgeshirethe strategic health authority, the mental health trust and the four primary care trustsoperate in a context of deficit budgets for 200405 and severe financial constraints in 200506. The committee will discuss the most effective ways of lobbying nationally and at strategic health authority level for the Government to give greater priority to mental health in their guidance to primary care trusts on the allocation of funding and more national health service resources for mental health in Cambridgeshire.
	A decision was made to close a relatively small in-patient unit, which is only a decade old, for dementia and Alzheimer's sufferers in the village of Doddington outside the town of March in a rural area. It was built partly with subscriptions from local people and was much respected and valued by them. More than that, it was loved by those people, who care deeply about the facility. Out of the decision to close it, partly to save money and perhaps partly to reconfigure the service with a greater emphasis on community mental health provision, we realise that there are problems nationally with mental health service provision, funding for mental health and setting centralised targets by the Government, which are not adequately funded through the system. That all creates the sort of difficulties that I outlined.
	I do not expect the Under-Secretary to leap up and say that he will intervene to stop the closure. I hope that he does but I do not expect it. However, I should like him to consider some of my points. After all, when the mental health trust amalgamated, the area health authority promised that any deficits would be made good. That has not happened. We no longer have an area health authority but somebodyhopefully, the strategic health authorityshould honour the commitment. With an extra 2.5 million, the closure need not go ahead.

Stephen Ladyman: I congratulate the hon. Member for North-East Cambridgeshire (Mr. Moss) on securing the debate and the courteous way in which he has marshalled his arguments. However, as he predicted, I must begin by disabusing him of one or two matters.
	Despite what the hon. Gentleman might believe to be the case, the Cambridge and Peterborough Mental Health Partnership NHS Trust has had a balanced financial position since its formation in 2002. I readily acknowledge that that was a significant achievement, given that, as he said, seven separate organisations were merged to create the trust. We should pay tribute to the staff who achieved that.
	Shifting the Balance of Power, which is the Government's policy to shift power to local level, means that the decisions are for the local primary care trusts and the local mental health trust to make. The hon. Gentleman cited a written answer from me in which I said that the local trust advised me of specific factsthat is precisely what it means. I was advised because the decisions are no longer a matter for central Government but for the local trusts. It is up to them to balance their books and decide how they will configure their services.
	By devolving funding to the front line, we have given the NHS the power to make decisions where they are best made and by the people who are best capable of making themin the local area by local people.
	The hon. Gentleman said that, on 9 February, my right hon. Friend the Secretary of State announced that 135 billion had been allocated to English primary care trusts for the financial years 200607 and 200708. The money will guarantee that the NHS continues to move forward. As a direct result of the 135 billion, the hon. Gentleman's PCTEast Cambridgeshire and Fenland PCTwill receive 179.2 million in 200607 and 203.9 million in 200708. Those figures represent a cash increase of 48.5 million or 31.2 per cent. over the two years, compared with a national average of 19 per cent.
	It is worth adding that that investment is well in excess of what would have been available to the hon. Gentleman's constituents if NHS funding had been delivered using the distribution formula that we inherited from the previous Conservative Government. When he says that, even at the end of the two years, the PCT will be 3 per cent. behind target, that target is the one that this Government have set as the figure that we would like his PCT ultimately to reach. It is substantially more than the previous Conservative Government's formula would have allowed his local PCT and the local population to have.
	I turn now to the level of funding available for the provision of services for those with a mental illness in North-East Cambridgeshire. First, I want to stress that the Cambridgeshire and Peterborough Mental Health Partnership NHS Trust has received an increase in its income of 18.2 million since 200203, which means that its income this year is 113.5 million. As I said at the start of my speech, the trust has achieved financial balance in its first two years.
	The hon. Gentleman mentioned an underlying deficit of 2.5 million, or 4.5 million, depending on how people wish to express it. Since the trust has achieved, and is achieving, financial balance, I can only assume that his definition of an underlying deficit is the difference between the amount of money that the trust has to spend on services and the amount that it would like to spend on services. It is not an actual debt or deficit.

Malcolm Moss: Will the Minister give way?

Stephen Ladyman: Very briefly, as the hon. Gentleman has not given me much time to respond.

Malcolm Moss: This is an important point. A real deficit was inherited, and it built up. Otherwise, why would the mental health trust call in the PCTs and tell them that if it did not receive additional funding from them, it would have to cut services to save money, which is what happened in the East Cambridgeshire and Fenland PCT?

Stephen Ladyman: My understanding is that there might have been a notional inherited debt from the merger. However, it has accrued year on year, so it has not been necessary for the PCT to eat into that sum of money in any particular year. The fact is that the trust is achieving financial balance and it will relieve the debt of 2.5 millionor 4.5 million, whichever it isby disposing of unwanted assets over a period of time.
	That is very different from suggesting that Alan Conway Court is part of the reconfiguration of the services. Indeed, the PCT and the trust have suggested to me that, irrespective of any saving that they might achieve from Alan Conway Court, they would still want to carry out the reconfiguration. That is because they want to put money into providing services for people in their own home. People do not want to be put into that type of facility nowadays, so the PCT and the trust want to increase the level of service available to people at home. That is why the reconfiguration is taking place, and the money that will be saved by it will be put to that purpose.
	As I said earlier, it is our policy that local NHS bodies should decide the priorities for local services. They have the specific knowledge and expertise to make those decisions, and that is very much the case with Alan Conway Court's in-patient facility. I stress that Alan Conway Court is not closing; it is only the in-patient facility that is being closed under the proposals. It is my understanding that the PCT and the mental health partnership trust have conducted a 10-week joint public consultation process relating to the reconfiguration of mental health services for older people in the area, which concluded in December 2004.
	The options included closing the Alan Conway Court in-patient facility and consolidating in-patient beds at Rowan Lodge. Doing this will allow investment in the community mental health team. This proposal is not driven by any cash limitations, real or imagined. I am advised by the mental health trust that, even if it had an endless pot of money, it would still be reconfiguring the services that it provides, in order to provide services in people's own homes
	The motion having been made after Ten o'clock, and the debate having continued for half an hour, Mr. Deputy Speaker adjourned the House without Question put, pursuant to the Standing Order.
	Adjourned accordingly at twenty-nine minutes past Twelve o'clock.